163 Qanun-e-Shahadat

P L D 2011 Peshawar 112
Before Attaullah Khan, J
ABDUL KHALIQ---Petitioner
Versus
GUL FARAZ---Respondent
Civil Revisions Nos.239 and 240 of 2006, decided on 10th August; 2010. .
(a) Tort---
----Malicious prosecution---Damages, suit for---Burden of proof -Burden would lie upon

plaintiff to establish that his involvement in criminal case by defendant was false,
frivolous and for some motive---Absence of such evidence would disentitle plaintiff to
damages---Acquittal from criminal case for reason of doubtful involvement or benefit of
doubt would not be a ground for claiming damages for malicious prosecution---Acquittal
of plaintiff by Magistrate for failure of defendant to establish criminal charge and on
basis of plaintiff's oath showing his innocence would not entitle plaintiff to claim
damages---Principles.
PLD 1993 Pesh. 72 and PLD 2006 Pesh. 206 ref.
(b) Oaths Act (X of 1873)---
---Ss. 8, 9, 10 & 11---Qanun-e-Shahadat (10 of 1984), Art. 163---Oath taken under Oaths
Act, 1873 would be binding upon parties, but oath under Art. 163 of Qanun-e-Shahadat,
1984 would not be binding---In case of rebuttal of oath under Art. 163 of Qanun-e-
Shahadat, 1984 by opposite party, Court would proceed to record evidence.
PLD 1993 Pesh. 72 ref.
Noor Gul Khan Marwat for Appellant.
Sajid Nawaz Khan Sadozai for Respondent.
Date of hearing: 10th August, 2010.
JUDGMENT
ATTAULLAH KHAN, J.---This judgment shall dispose of two Civil Revision Petitions
bearing Nos.239 and 240 of 2006, titled Abdul Khaliq v. Gul Faraz Khan and Amir Khan
v. Gul Faraz respectively, because both these petitions are the outcome of one and the
same judgment, dated 14-6-2006 passed by the learned Additional District Judge-II,
Lakki Marwat.
2. Facts of the cases are that the respondent Gul Faraz Khan had prosecuted the
petitioners in F.I.R. No.21, dated 21-1-2001 under sections 436/34, P.P.C. which
ultimately ended in their acquittal, Thereafter, the petitioners sued the respondent for
damages of Rs.24,500 and mental torture in two different Suits Nos. 240/1 and 241/1
which were decreed to the extent of Rs. 12,000 each vide judgment and decree dated 28-
4-2005 passed by the learned Civil Judge, Lakki Marwat. But on appeal, the said
judgment and decree were set aside by the learned Additional District Judge-II, Lakki
Marwat vide her judgment and decree dated 14-6-2006. Hence these revision petitions.
3. Learned counsel for the petitioners argued that the respondent had failed to prove his
cases against the petitioners due to which they were acquitted by the trial Court in the
case mentioned above, therefore, their suits for damages and malicious prosecution were
rightly decreed by the Civil Court. He urged that the appellate Court has wrongly set
aside the same and its findings are thus based on surmises, conjecturers, misreading, and
Page No. 1 of 3
non-reading of material evidence brought on record which are liable to be set aside.
4. On the other hand, learned counsel for the respondent supported the impugned findings
of the lower appellate Court. He urged that the trial Court has acted without jurisdiction
because the case of the petitioner falls under the domain of Defamation Ordinance, 2002
and according to section 13 thereof, only the District Judge is competent to try cases of
such like nature. He next submitted that notice as required under section 8 of the
Ordinance ibid has also not been given to the respondent, therefore, the suits were
otherwise time-barred.
5. I have carefully examined record of the cases and considered the arguments of the
learned counsel for the petitioners.
6. Two points for determination have emerged. The first is proof of allegations levelled
against the petitioners and the second is jurisdiction of the Civil Judge.
7. As far as the first point is concerned, the plaintiff/respondent had sued the petitioners
for damages, therefore, the burden lies upon him to establish that the criminal case
against him is false and frivolous. It means that the plaintiff is required to prove his
malicious prosecution. The evidence on record discloses no such malicious prosecution.
Mere acquittal is no ground for claiming damages for malicious prosecution. Acquittal
may be for the reason of doubtful involvement of the accused and may be based on
benefit of doubt. In such circumstances, no clear cut case could be made for damages.
The judgment of the Magistrate acquitting the plaintiff is on file as Exh.P.W.1/1 and its
last paragraph reveals that the plaintiff/petitioners were acquitted of the charge because
they stated on oath that they did not indulge in malicious prosecution and the complainant
party failed to establish the charge on the strength of evidence. Since the innocence of
accused was supported by oath, therefore, they were acquitted which is unrebuttable.
8. In the case .in hand, Article 163 of Qanun-e-Shahadat Order, 1984 is relevant and not
sections 8 to 11 of the Oath Act, 1873. The oath 1 prescribed in Oath Act is binding, upon
the parties, while oath under Article 163 of Qanun-e-Shahadat Order 1984 is not binding.
In case of rebuttal of oath by the other side, the Court would proceed by recording
evidence. The Magistrate seems to have influenced from Oath Act, 1873 and last sight of
Article 163 of Qanun-e-Shahadat Order 1984.
9. In this respect, I may refer to PLD 1993 Peshawar 72 and in paragraph-5 thereof, it has
been held as under:
"The first contention raised by the learned counsel for the petitioner is
misconceived, as the oath taken by the respondent having emanated from the offer
made by the petitioner of his own free will and accord is governed by sections 8
to 11 of the Oaths Act, 1873 and not by Article 163 of Qanun-e-Shahadat 1984.
The oath within the contemplation of sections 8 to 11 of the Oath Act, 1873 stems
from a voluntary agreement between the parties and when taken has a binding
effect leaving the party making the offer with no choice to turn around and strike
a discordant note as observed in Maulvi Muhammad Ramzan v. Muhammad
Ismail (1982 SCMR 908), Firm Chiragh Hussain v. Khawaja Habib Joo (PLD
1983 SC (AJ&K) 86, Khan Sher v. Mst. Kabla and another (PLD 1988 Peshawar
86) and Muzaffer Ali and 2 others v. Ch. Asghar Ali (1991 CLC 2110), while the
oath, envisaged by Article 163 of the Qanun-e-Shahadat 1984, is entailed by the
initiative taken by the plaintiff who takes an oath in support of his claim first and
then on his application the Court calls upon the defendant to deny the claim on
oath and in any event the Court is not precluded and deciding the case on merits
as observed in Rahmatullah v. Nasir Khan and 7 others (1991 MLD Peshawar
101, Nazir Ahmad v. District Judge Liayah (PLD 1986 Lahore 137) and
Muhammad Shahbaz v. Ghulam Rasool (1987 CLC 1512). In technical terms, the
oath referred to in Article 163 of the Qanun-e-Shahadat 1984 is a general oath and
the oath provided by Oaths Act, 1873 is a special oath and both are diametrically
opposed to each other".
10. In view of the above dictum, it is clear that the acquittal of the plaintiffs would not
Page No. 2 of 3
entitle them to any damages for malicious prosecution, because of decision on oath of
accused.
11. Even otherwise, the plaintiffs have failed to prove their cases for malicious
prosecution, because the ingredients thereof are not available. The plaintiffs were
required to prove that their prosecution was malicious but they have failed to show that
their acquittal would make the case for damages and it is necessary to prove that the
prosecution of the petitioners was because of some motive. So the basic ingredients for
damages were missing, therefore, on this count too, the petitioners were not entitled to
any damages.
12. As far as the question of jurisdiction of Civil Judge is concerned, it is also doubtful.
The plaints of the plaintiffs reveal that the suits were for damages caused to the plaintiffs
on account of mental torture. In this respect, Issue No.2 has been framed which is
regarding false and frivolous litigation. So in my view, this is a case covered under
Defamation Ordinance, 2002 and according to section 13 thereof, only the District Judge
has jurisdiction to try such cases and the jurisdiction of Civil Judge has been excluded. In
such like cases, the dismissal of suit under Order VII Rule 11, C.P.C. was approved by
this Court in the case reported in PLD 2006 Peshawar 206.
13. In short, even on merits, the petitioners have failed to prove their cases for damages
as prayed for. Even the jurisdiction of Civil judge for granting decree is also doubtful.
14. As a corollary to what has been discussed above, I find no merit in either of the two
revision petitions which are accordingly dismissed leaving the parties to bear their own
costs.
S.AK./426/P Revisions dismissed.
Page No. 3 of 3
2009 P Cr. L J 1403
[Lahore]
Before Iqbal Hameedur Rahman, J
MUHAMMAD NAWAZ and another----Petitioners
Versus
THE STATE----Respondent
Criminal Revision No.426 of 2009, heard on 30th June, 2009.
(a) Penal Code (XLV of 1860)---
----Ss. 302/148/149/109---Qanun-e-Shahadat (10 of 1984), Art.163--Criminal Procedure

Code (V of 1898), Ss.265-K & 439--Trial Court had dismissed the application of accused
for acquittal under S.265-K, Cr.P.C.---Validity---Police during investigation after about
five months on the basis of statements of two persons recorded under the oath of the Holy
Qur'an, had declared the nominated accused. of the F:I.R. as innocent and involved the
present accused in the murder of the deceased---Said statements being inconsistent with
the ocular evidence of the complainant and eye-witnesses were not reliable---Declaration
of the accused nominated in the F.I.R. as innocent by police on swearing on the Holy
Qur'an, was in contravention of Art.163 of the Qanun-e-Shahadat, 1984---Present accused
were neither nominated in the F.I.R nor in the complaint case or even in the inquiry report
conducted thereunder and charge against them being groundless, there was no possibility
of their conviction in the case---Impugned order was consequently set aside and the
accused were acquitted of the charge in circumstances---Revision petition was accepted
accordingly.
Muhammad Sadiq and another v. The State PLD 1960 SC (Pak.) 223; Amir and another
v. The State PLD 1968 Lah. 49; The State v. Tanveer-ul-Hassan and 5 others 2009 PCr.LJ
199; Muhammad Rafiq and 3 others v. The State 1974 PCr.LJ 391; Wahid Bakhsh and
another v. The State 1976 PCr.LJ 34; Muhammad Khan v. Maula Bakhsh and another
1998 SCMR 570; Abdul Sattar and others v. The State 1995 PCr.LJ 1793; Khalid Nawaz
v. The State 1999 PCr.LJ 391; State through Secretary, Ministry of Interior v. Ashiq Ali
Bhutto 1993 SCMR 523 and Ghulam Mujtaba v. The State 2009 YLR 169 ref.
(b) Qanun-e-Shahadat (10 of 1984)---
----Art. 163---Acceptance or denial of claim on bath---Procedure of swearing on Holy

Qur'an is not applicable in criminal proceedings under Art.163 of the Qanun-e-Shahadat,
1984.
Abdul Sattar and others v. The State 1995 PCr.LJ 1793 and Khalid Nawaz v. The
State 1999 PCr.LJ 391 ref.
Malik Ghulam-us-Saddain for Petitioners.
Ghulam Qadir Bari, A.P.-G. for the State.
Date of hearing: 30th June, 2009.
JUDGMENT
IQBAL HAMEED-UR-RAHMAN, J.---Through this revision petition, the

petitioners have assailed the judgment dated 23-4-2009 passed by the learned
additional Sessions Judge, Ferozewala, whereby their application under section 265-
K, Cr.P.C. was dismissed.
2. Brief facts of this revision petition are that one Manzoor Hussain son of Waris Ali
Page No. 1 of 4
got registered a case F.I.R. No.94 dated 1-3-2007 at Police Station Sharqpur Sharif
District Sheikhupura under sections 109, 302, 149 and 148, P.P.C. against Zafar
Iqbal, Muhammad Amin, Munawwar Ali and three unknown persons, wherein he
alleged that the complainant along with his brother Abdul Ghafoor, Maboor Ali and
his nephew Abdul Shakoor were going to Salepur after selling their milk in village
Mehta Tridda. When they reached near Guava Garden of village Samoonlana, Zafar
Iqbal and Muhammad Amir armed with .30 bore pistols and Munawwar Ali armed
with a rifle 8 MM along with three unknown persons, all of a sudden, came out from
the garden. Zafar Iqbal fired with his pistol, which hit Abdul Ghafoor, brother of the
complainant, on right side of his chest. Abdul Ghafoor was removed to Mayo
Hospital Lahore where he succumbed to the injuries. It was further alleged in the
F.I.R. that murder of Abdul Ghafoor was committed upon the abetment of Ijaz Shah
son of Arif Shah.
3. During the course of investigation, police on the basis of statements of Rai

Muhammad Ali son of Ibrahim caste Mughal, resident of Barkat Colony Chung
District Lahore and Rai Ahmad Ali son of Muhammad Sultan caste Kharl resident of
Walianwala, District Sheikhupura after the lapse of about five months declared the
nominated accused of the F.I.R. as innocent and involved the present petitioners in
the murder of Abdul Ghafoor. The petitioners were accordingly challaned.
4. The complainant being dissatisfied with the investigation of the local police, filed
a private complaint against the accused nominated in the F.I.R. and Mian
Muhammad Afzal S.-I. Police Station Sharqpur Sharif, District Sheikhupura under
sections 302, 109, 201, 148 and 149, P.P.C. and under Article 155(c) of Police Order,
2002 read with section 190(1), Cr.P.C., wherein actual accused of the F.I.R. are
facing trial.
5. The petitioners filed an application under section 265-K, Cr.P.C. in the State case
for their acquittal of the charge but the same was dismissed by the learned
Additional Sessions Judge, Ferozewala, vide his judgment dated 23-4-2009. Being
aggrieved of the said judgment, the petitioners have filed this criminal revision.
6. It is contended by learned counsel for the petitioners that the petitioners have
neither been nominated by the complainant and the eye-witnesses of the F.i.R. nor
they have been implicated subsequently by the complainant in the complaint case;
that the subsequent two witnesses, namely, Rai Muhammad Ali son of Ibrahim and
Rai Ahmad Ali son of Sultan, are the touts of the police who have been planted as
witnesses to the occurrence in order to damage the F.I.R. case and to benefit the
accused of the F.I.R. with mala fide intention; that statements of both the
prosecution witnesses against the petitioners were recorded after unexplained delay
of five months and such statements are inconsistent with the ocular evidence of the
complainant and eye-witnesses and it is difficult to rely on the evidence of the
witnesses, which are recorded after inordinate delay and that both the said witnesses
have been joining investigation from the very beginning but they remained silent for
about five months which causes serious doubts on the credibility of such witnesses,
in this regard reliance is placed upon Muhammad Sadiq and another v. The State
PLD 1960 SC (Pak.) 223; Amir and another v. The State PLD 1968 Lail. 49; the
State v. Tanveer-ul-Hassan and 5 others 2009 PCr.LJ 199, Muhammad Rafiq and 3
others v. The State 1974 PCr.LJ 391; Wahid Bakhsh and another v. The State 1976
PCr.LJ 34 and Muhammad Khan v. Maula Bakhsh anci another 1998 SCMR 570. It
is further contended that both the witnesses are not residents of the locality; that on
23-3-2007 and 25-3-2007, both the witnesses appeared before the police but did not
make any statement against the petitioners. It is further contended that the
petitioners are shown empty handed in the F.I.R. and have not been attributed any
role in the occurrence and that nothing has been recovered from the petitioners
during investigation. It is also contended that the accused nominated in the F.I.R.
were declared innocent on the basis of oath and as procedure of swearing on Holy
Qur'an is not applicable in criminal proceedings under Article 163 of the Qanun-e-
Shahadat Order, 1984, declaration of innocence of the accused nominated in the
F.I.R. by the police is in contravention of the said Article and in this behalf reliance
is placed upon Abdul Sattar and others v. The State 1995 PCr.LJ 1793 and Khalid
Page No. 2 of 4
Nawaz v, The State 1999 PCr.LJ 391. It is further contended that under section 265-
K, Cr.P.C. the Court can acquit the accused at any stage of the case, as such, the
learned Additional Sessions Judge, Ferozewala, was not, right in dismissing the
application of the petitioners under section 265-K, Cr.P.C., holding that the same is pre-
mature. Reliance in this behalf is placed upon State through Secretary, Ministry of
Interior v. Ashiq Ali Bhutto 1993 SCMR 523 and Ghulam Mujtaba v. The State 2009
YLR 169.
7. On the other hand, the learned Assistant Prosecutor-General while opposing the
contentions of learned counsel for the petitioners and supporting the impugned order, has
stated that since the evidence of the two witnesses, namely, Rai Muhammad Ali and Rai
Ahmad Ali, is recorded under section 161, Cr.P.C. and there is sufficient material on the
file, the learned trial Court is the best forum to decide the credibility of the said
witnesses; that the power of the police to join any person as witness of the case is not
curtailed by law and that the application of the petitioners was under section 265-K,
Cr.P.C. and the Court was to determine whether there is a sufficient material for probable
conviction of the accused, therefore, the learned Additional Sessions Judge, Ferozewala,
was right in dismissing the application of the petitioners under section 265-K, Cr.P.C.
8. I have heard learned counsel for the petitioners as well as the learned APG and have
also perused the impugned order and other material available on the record.
9. A perusal of the F.I.R. as well as the complaint case reveals that the petitioners were
not nominated as accused in the case. It was for the first time that during the
investigation, the police on the basis of statements of Rai Muhammad Ali son of Ibrahim
caste Mughal, resident of Barkat Colony Chung District Lahore and Rai Ahmad Ali son
of Muhammad Sultan caste Kharl resident of Walianwala District Sheikhupura after the
lapse of about five months declared the nominated accused of the F.I.R. as innocent and
involved the present petitioners in the murder of Abdul Ghafoor. Even during the inquiry,
which was made on the basis of the complaint case filed by the complainant, the
petitioners were not nominated as accused, as is evident from the inquiry report dated 28-
5-2007 made by the learned Judicial Magistrate Section 30, Ferozewala. A perusal of the
statements of Maboor Ali and Abdul Shakoor, who are witnesses of the F.I.R. as well as
the complaint case, also reveals that they while nominating the accused mentioned in the
F.I.R., did not nominate the petitioners as accused. They further stated that the police
mala fidely declared the accused innocent. Rai Muhammad Ali and Rai Ahmad Ali, who
were not residents of the locality, appeared before the police on 23-3-2007 and 25-3-2007
but they did not make any statement against the petitioners and on 28-7-2007 i.e. after
lapse of about four months, they nominated the petitioners as accused and such
statements are inconsistent with the ocular evidence of the complainant and eye-
witnesses and it is difficult to rely on the evidence of the witnesses, which are recorded
after inordinate delay. In this respect, reliance is placed upon Muhammad Sadiq and
another v. The State PLD 1960 SC (Pak.) 223, Amir and another v. The State PLD 1968
Lah. 49, The State v. Tanveer-ul-Hassan and 5 others 2009 PCr.LJ 199, Muhammad Rafiq
and 3 others v. The State 1974 PCr.LJ 391, Wahid Bakhsh and another v. The State 1976
PCr.LJ 34 and Muhammad Khan v. Maula Bakhsh and another 1998 SCMR 570. In view
of the same, it appears that the police mala fidely nominated the petitioners as accused.
The accused nominated in the F.I.R. were declared innocent on the basis of oath and as
procedure of swearing on Holy Qur'an is not applicable in criminal proceedings under
Article 163 of the Qanun-e-Shahadat Order, 1984, declaration of innocence of the
accused nominated in the F.I.R. by the police is in contravention of the said Article and in
this behalf reliance is placed upon Abdul Sattar and others v. The State 1995 PCr.LJ 1793
and Khalid Nawaz v. The State 1999 PCr.LJ 391. Even otherwise under section 265-K,
Cr.P.C. at any stage of the case, the Court can acquit the accused if it considers that the
charge is groundless and there is no possibility of conviction of the accused. As the
petitioners were not nominated as accused in the F.I.R., the complaint case and even in
the inquiry report dated 28-5-2007 of the learned Judicial Magistrate section 30,
Ferozewala, which was made on the basis of the complaint case and the charge against
them is groundless and there is no possibility of conviction of the petitioners, the learned
Additional Sessions Judge, Ferozewala, was not right in dismissing the application of the
petitioners under sections 265-K, Cr.P.C.
Page No. 3 of 4
10. In view of the above circumstances, this revision petition is accepted and the
impugned order dated 23-4-2009 is set aside and the petitioners are acquitted of the
charge.
N.H.Q./M-482/L Revision accepted.
Page No. 4 of 4
2009 P Cr. L J 1403
[Lahore]
Before Iqbal Hameedur Rahman, J
MUHAMMAD NAWAZ and another----Petitioners
Versus
THE STATE----Respondent
Criminal Revision No.426 of 2009, heard on 30th June, 2009.
(a) Penal Code (XLV of 1860)---
----Ss. 302/148/149/109---Qanun-e-Shahadat (10 of 1984), Art.163--Criminal Procedure

Code (V of 1898), Ss.265-K & 439--Trial Court had dismissed the application of accused
for acquittal under S.265-K, Cr.P.C.---Validity---Police during investigation after about
five months on the basis of statements of two persons recorded under the oath of the Holy
Qur'an, had declared the nominated accused. of the F:I.R. as innocent and involved the
present accused in the murder of the deceased---Said statements being inconsistent with
the ocular evidence of the complainant and eye-witnesses were not reliable---Declaration
of the accused nominated in the F.I.R. as innocent by police on swearing on the Holy
Qur'an, was in contravention of Art.163 of the Qanun-e-Shahadat, 1984---Present accused
were neither nominated in the F.I.R nor in the complaint case or even in the inquiry report
conducted thereunder and charge against them being groundless, there was no possibility
of their conviction in the case---Impugned order was consequently set aside and the
accused were acquitted of the charge in circumstances---Revision petition was accepted
accordingly.
Muhammad Sadiq and another v. The State PLD 1960 SC (Pak.) 223; Amir and another
v. The State PLD 1968 Lah. 49; The State v. Tanveer-ul-Hassan and 5 others 2009 PCr.LJ
199; Muhammad Rafiq and 3 others v. The State 1974 PCr.LJ 391; Wahid Bakhsh and
another v. The State 1976 PCr.LJ 34; Muhammad Khan v. Maula Bakhsh and another
1998 SCMR 570; Abdul Sattar and others v. The State 1995 PCr.LJ 1793; Khalid Nawaz
v. The State 1999 PCr.LJ 391; State through Secretary, Ministry of Interior v. Ashiq Ali
Bhutto 1993 SCMR 523 and Ghulam Mujtaba v. The State 2009 YLR 169 ref.
----Art. 163---Acceptance or denial of claim on bath---Procedure of swearing on Holy

Qur'an is not applicable in criminal proceedings under Art.163 of the Qanun-e-Shahadat,
1984.
Abdul Sattar and others v. The State 1995 PCr.LJ 1793 and Khalid Nawaz v. The
State 1999 PCr.LJ 391 ref.
Malik Ghulam-us-Saddain for Petitioners.
Ghulam Qadir Bari, A.P.-G. for the State.
JUDGMENT
IQBAL HAMEED-UR-RAHMAN, J.---Through this revision petition, the

petitioners have assailed the judgment dated 23-4-2009 passed by the learned
additional Sessions Judge, Ferozewala, whereby their application under section 265-
K, Cr.P.C. was dismissed.
2. Brief facts of this revision petition are that one Manzoor Hussain son of Waris Ali
Page No. 1 of 4
got registered a case F.I.R. No.94 dated 1-3-2007 at Police Station Sharqpur Sharif
District Sheikhupura under sections 109, 302, 149 and 148, P.P.C. against Zafar
Iqbal, Muhammad Amin, Munawwar Ali and three unknown persons, wherein he
alleged that the complainant along with his brother Abdul Ghafoor, Maboor Ali and
his nephew Abdul Shakoor were going to Salepur after selling their milk in village
Mehta Tridda. When they reached near Guava Garden of village Samoonlana, Zafar
Iqbal and Muhammad Amir armed with .30 bore pistols and Munawwar Ali armed
with a rifle 8 MM along with three unknown persons, all of a sudden, came out from
the garden. Zafar Iqbal fired with his pistol, which hit Abdul Ghafoor, brother of the
complainant, on right side of his chest. Abdul Ghafoor was removed to Mayo
Hospital Lahore where he succumbed to the injuries. It was further alleged in the
F.I.R. that murder of Abdul Ghafoor was committed upon the abetment of Ijaz Shah
son of Arif Shah.
3. During the course of investigation, police on the basis of statements of Rai

Muhammad Ali son of Ibrahim caste Mughal, resident of Barkat Colony Chung
District Lahore and Rai Ahmad Ali son of Muhammad Sultan caste Kharl resident of
Walianwala, District Sheikhupura after the lapse of about five months declared the
nominated accused of the F.I.R. as innocent and involved the present petitioners in
the murder of Abdul Ghafoor. The petitioners were accordingly challaned.
4. The complainant being dissatisfied with the investigation of the local police, filed
a private complaint against the accused nominated in the F.I.R. and Mian
Muhammad Afzal S.-I. Police Station Sharqpur Sharif, District Sheikhupura under
sections 302, 109, 201, 148 and 149, P.P.C. and under Article 155(c) of Police Order,
2002 read with section 190(1), Cr.P.C., wherein actual accused of the F.I.R. are
facing trial.
5. The petitioners filed an application under section 265-K, Cr.P.C. in the State case
for their acquittal of the charge but the same was dismissed by the learned
Additional Sessions Judge, Ferozewala, vide his judgment dated 23-4-2009. Being
aggrieved of the said judgment, the petitioners have filed this criminal revision.
6. It is contended by learned counsel for the petitioners that the petitioners have
neither been nominated by the complainant and the eye-witnesses of the F.i.R. nor
they have been implicated subsequently by the complainant in the complaint case;
that the subsequent two witnesses, namely, Rai Muhammad Ali son of Ibrahim and
Rai Ahmad Ali son of Sultan, are the touts of the police who have been planted as
witnesses to the occurrence in order to damage the F.I.R. case and to benefit the
accused of the F.I.R. with mala fide intention; that statements of both the
prosecution witnesses against the petitioners were recorded after unexplained delay
of five months and such statements are inconsistent with the ocular evidence of the
complainant and eye-witnesses and it is difficult to rely on the evidence of the
witnesses, which are recorded after inordinate delay and that both the said witnesses
have been joining investigation from the very beginning but they remained silent for
about five months which causes serious doubts on the credibility of such witnesses,
in this regard reliance is placed upon Muhammad Sadiq and another v. The State
PLD 1960 SC (Pak.) 223; Amir and another v. The State PLD 1968 Lail. 49; the
State v. Tanveer-ul-Hassan and 5 others 2009 PCr.LJ 199, Muhammad Rafiq and 3
others v. The State 1974 PCr.LJ 391; Wahid Bakhsh and another v. The State 1976
PCr.LJ 34 and Muhammad Khan v. Maula Bakhsh anci another 1998 SCMR 570. It
is further contended that both the witnesses are not residents of the locality; that on
23-3-2007 and 25-3-2007, both the witnesses appeared before the police but did not
make any statement against the petitioners. It is further contended that the
petitioners are shown empty handed in the F.I.R. and have not been attributed any
role in the occurrence and that nothing has been recovered from the petitioners
during investigation. It is also contended that the accused nominated in the F.I.R.
were declared innocent on the basis of oath and as procedure of swearing on Holy
Qur'an is not applicable in criminal proceedings under Article 163 of the Qanun-e-
Shahadat Order, 1984, declaration of innocence of the accused nominated in the
F.I.R. by the police is in contravention of the said Article and in this behalf reliance
is placed upon Abdul Sattar and others v. The State 1995 PCr.LJ 1793 and Khalid
Page No. 2 of 4
Nawaz v, The State 1999 PCr.LJ 391. It is further contended that under section 265-
K, Cr.P.C. the Court can acquit the accused at any stage of the case, as such, the
learned Additional Sessions Judge, Ferozewala, was not, right in dismissing the
application of the petitioners under section 265-K, Cr.P.C., holding that the same is pre-
mature. Reliance in this behalf is placed upon State through Secretary, Ministry of
Interior v. Ashiq Ali Bhutto 1993 SCMR 523 and Ghulam Mujtaba v. The State 2009
YLR 169.
7. On the other hand, the learned Assistant Prosecutor-General while opposing the
contentions of learned counsel for the petitioners and supporting the impugned order, has
stated that since the evidence of the two witnesses, namely, Rai Muhammad Ali and Rai
Ahmad Ali, is recorded under section 161, Cr.P.C. and there is sufficient material on the
file, the learned trial Court is the best forum to decide the credibility of the said
witnesses; that the power of the police to join any person as witness of the case is not
curtailed by law and that the application of the petitioners was under section 265-K,
Cr.P.C. and the Court was to determine whether there is a sufficient material for probable
conviction of the accused, therefore, the learned Additional Sessions Judge, Ferozewala,
was right in dismissing the application of the petitioners under section 265-K, Cr.P.C.
8. I have heard learned counsel for the petitioners as well as the learned APG and have
also perused the impugned order and other material available on the record.
9. A perusal of the F.I.R. as well as the complaint case reveals that the petitioners were
not nominated as accused in the case. It was for the first time that during the
investigation, the police on the basis of statements of Rai Muhammad Ali son of Ibrahim
caste Mughal, resident of Barkat Colony Chung District Lahore and Rai Ahmad Ali son
of Muhammad Sultan caste Kharl resident of Walianwala District Sheikhupura after the
lapse of about five months declared the nominated accused of the F.I.R. as innocent and
involved the present petitioners in the murder of Abdul Ghafoor. Even during the inquiry,
which was made on the basis of the complaint case filed by the complainant, the
petitioners were not nominated as accused, as is evident from the inquiry report dated 28-
5-2007 made by the learned Judicial Magistrate Section 30, Ferozewala. A perusal of the
statements of Maboor Ali and Abdul Shakoor, who are witnesses of the F.I.R. as well as
the complaint case, also reveals that they while nominating the accused mentioned in the
F.I.R., did not nominate the petitioners as accused. They further stated that the police
mala fidely declared the accused innocent. Rai Muhammad Ali and Rai Ahmad Ali, who
were not residents of the locality, appeared before the police on 23-3-2007 and 25-3-2007
but they did not make any statement against the petitioners and on 28-7-2007 i.e. after
lapse of about four months, they nominated the petitioners as accused and such
statements are inconsistent with the ocular evidence of the complainant and eye-
witnesses and it is difficult to rely on the evidence of the witnesses, which are recorded
after inordinate delay. In this respect, reliance is placed upon Muhammad Sadiq and
another v. The State PLD 1960 SC (Pak.) 223, Amir and another v. The State PLD 1968
Lah. 49, The State v. Tanveer-ul-Hassan and 5 others 2009 PCr.LJ 199, Muhammad Rafiq
and 3 others v. The State 1974 PCr.LJ 391, Wahid Bakhsh and another v. The State 1976
PCr.LJ 34 and Muhammad Khan v. Maula Bakhsh and another 1998 SCMR 570. In view
of the same, it appears that the police mala fidely nominated the petitioners as accused.
The accused nominated in the F.I.R. were declared innocent on the basis of oath and as
procedure of swearing on Holy Qur'an is not applicable in criminal proceedings under
Article 163 of the Qanun-e-Shahadat Order, 1984, declaration of innocence of the
accused nominated in the F.I.R. by the police is in contravention of the said Article and in
this behalf reliance is placed upon Abdul Sattar and others v. The State 1995 PCr.LJ 1793
and Khalid Nawaz v. The State 1999 PCr.LJ 391. Even otherwise under section 265-K,
Cr.P.C. at any stage of the case, the Court can acquit the accused if it considers that the
charge is groundless and there is no possibility of conviction of the accused. As the
petitioners were not nominated as accused in the F.I.R., the complaint case and even in
the inquiry report dated 28-5-2007 of the learned Judicial Magistrate section 30,
Ferozewala, which was made on the basis of the complaint case and the charge against
them is groundless and there is no possibility of conviction of the petitioners, the learned
Additional Sessions Judge, Ferozewala, was not right in dismissing the application of the
petitioners under sections 265-K, Cr.P.C.
Page No. 3 of 4
10. In view of the above circumstances, this revision petition is accepted and the
impugned order dated 23-4-2009 is set aside and the petitioners are acquitted of the
charge.
N.H.Q./M-482/L Revision accepted.
Page No. 4 of 4
Before Raj Muhammad Khan and Zia-ud-Din Khattak, JJ
LIAQ ZAMAN and another---Petitioners
Versus
FAZAL RAHMAN and 2 others---Respondents
Writ Petition No.727 of 2005, decided on 30th April, 2008.
Civil Procedure Code (V of 1908)---
----O. VII, R. 2---Oaths Act (X of 1873), Ss.9 & 10---Qanun-e-Shahadat (10 of 1984),
Art.163---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for
recovery of amount---Deciding case on oath---Plaintiff during proceedings submitted
application for deciding the case on oath---Defendant, however, declined said offer of
plaintiff and requested that plaintiff should be asked to prove his case---Trial Court
accepted application of plaintiff and vide order allowed plaintiff to take oath on the Holy
Qur'an in support of his claim---Revision filed by defendant against said order of the
Trial Court having been dismissed, defendant had filed constitutional petition---
Validity---Oaths Act, 1873, provided that offer and its acceptance were must and were
also the relevant ingredients for deciding the case on oath, while Art.163 of the Qanun-e-
Shahadat, 1984 envisaged that when the plaintiff would take oath in support of his claim,
the Court, on the application of plaintiff, would call upon the defendant to deny the claim
on oath---Defendants having declined the offer of decision of the case on oath, court
should have asked defendant to adduce evidence in support of his claim, but the court did
not do so and instead allowed the plaintiff to take oath on the Holy Qur'an, which
otherwise was not permissible under Shariah-Impugned order of the two courts below
were set aside and case was remanded to the Trial Court for decision on merits.
Muhammad Safdar Khan for Petitioners.
Nemo for Respondents: Ex parte.
Date of hearing: 30th April, 2008.
JUDGMENT
ZIA-UD-DIN KHATTAK, J.---Fazle Rehman, plaintiff (hereinafter called as "the

respondent No.1") filed Suit No.9/1 of 2003 for the recovery of Rs.6,35,000 against Laiq
Zaman, etc. defendants (herein after called as "the petitioners"). The latter contested the
suit by filing a written statement. During the proceedings, the respondent No.1 submitted
an application for deciding the case on oath. The petitioners, however, declined the offer
and requested that the respondent No.1 may be asked to prove his case. However, the
learned Civil Judge/Illaqa Qazi, Samarbagh who seized of the case, accepted the
application vide order dated 7-7-2004 allowed the respondent No.1 to take oath on the
Holy Qur'an in support of his claim in terms of section 10 of the Oaths Act, 1873. Civil
Revision No.19/12 Nim of 2004 filed against the said order was dismissed by the learned
District Judge/Zilla Qazi, Dir Payeen vide judgment dated 5-4-2005.
2. Feeling aggrieved of the order, the petitioners filed this writ petition under Article 199
of the Constitution of the Islamic Republic of Pakistan on the ground that they could not
be compelled to take oath and that the case should be decided on merits as it is the basic
requirement of the law.
3. The respondent No.1 despite service omitted to turn up hence was placed ex parte. We
have heard Mr. Safdar Khan, Advocate, learned counsel for the petitioners and perused
the documents annexed with the petition.
4. The provisions relating to decision of a case on the basis of oath are contained in
Page No. 1 of 2
sections 9/10 of the Oaths Act, 1873 and Article 163 of the Qanun-e-Shahadat, 1984.
According to the Oaths Act, 1873, offer and acceptance are must and are also the relevant
ingredients for deciding the case on oath, while Article 163 envisages that when the
plaintiff takes oath in support of his claim, the court on the application of the plaintiff call
upon the defendant to deny the claim on oath. However, it does not lay down the
consequences if defendant does or does not deny plaintiff's claim on oath. In this case, the
petitioners had declined the offer of decision of the case on oath, as such, the Court
should have asked the respondent No.1 to adduce evidence in support of his claim but it
did not do so and instead allowed the respondent No.1 to take oath on the Holy Qur'an
which is otherwise not permissible under Shariah. In Book VI, Chapter II of the Hedaya
by Hamilton, it is provided that an oath may be expressed by using the name of Allah or
any of his customary attributes such as Rehman, Rahim and 97 others. The Hedaya has
also quoted the Holy Prophet (S.A.W.) that "if any man takes an oath, he must swear by
the name of Allah, or else his oath is void. If a person also swear by the Holy Qur'an, it
does not constitute an oath, although, the Holy Qur'an be the word of Allah because men
do not swear by the Qur'an".
5. In the result, we allow this writ petition, set aside the impugned order of the learned
two Courts below and remand the case to the learned trial Court for decision of the case
on merits.
H.B.T./49/P Petition allowed.
Page No. 2 of 2
2007 C L C 1874
[Lahore]
Before Maulvi Anwarul Haq, J
KHUSHI MUHAMMAD through L.Rs.----Petitioner
Versus
Mst. NAZIRA BIBI and 4 others----Respondents
Civil Revision No.2521 of 2006, heard on 4th September, 2007.
Qanun-e-Shahadat (10 of 1984)---
----Art. 163---Decision of a case on basis of oath---Offer and acceptance made in heat of

passion---Duty of Court---Plaintiff filed suit for declaration that gift mutation in respect
of suit land recorded in favour of his wife/defendant was illegal and void---Defendant
during her lengthy cross-examination made offer to decide the matter on statement on
oath by the plaintiff---Immediately after said offer statement of defendant was recorded
to the effect that if plaintiff stated on oath on Holy Qur'an that he had not gifted suit land
to defendant, the suit be decreed otherwise it be dismissed---Offer was accepted, oath was
taken and suit was decreed on the same day---Validity---Trial Court acted too promptly
and did not follow the guidelines laid down by Supreme Court in Muhammad Ali's case
reported as PLD 1990 SC 84---Courts, keeping in view the said judgment should have
refrained from recording such offer and acceptance speedily for the reason that party
may, in the heat of passion, make such an offer, or accept such one, which otherwise, in a
state of cool deliberation, he would not do.
Mukhtar Ahmed Khan v. Mushtaq Ahmad 1998 SCMR 2049; Muhammad Rafique and
another v. Sakhi Muhammad and others PLD 1996 SC 237; Attiqullah v. Kafaytullah
1981 SCMR 162; Ahmad Khan and others v. Jewan PLD 2002 SC 655 and Muhammad
Ali v. Maj. Muhammad Aslam and others PLD 1990 SC 841 ref.
Sh. Naveed Sheharyar for Petitioner.
Malik Amjad Pervaiz and Zahid Aslam for Respondent No.1.
Tahir Munir Malik, A.A.-G.
Date of hearing: 4th September; 2007.
JUDGMENT
MAULVI ANWARUL HAQ, J.--- On 19-4-2003 Khushi Muhammad deceased

petitioner filed a suit against the respondents. He sought a declaration that mutation
No.2137 attested on 24-4-1991 recording a gift of the suit land owned by the petitioner in
favour of Mst. Naziran Bibi (respondent No.1) (wife of the said Khushi Muhammad) is
illegal and void for reasons stated there. The suit was contested by respondent No. 1.
Issues were framed. Evidence of the petitioner was recorded and concluded on 5-9-2005.
On 6-3-2006 the evidence of respondent No.1 was being recorded. She was in the witness
box as D. W.1. While she was being cross-examined, she stated that let the suit be
decided on the basis of oath on Holy Qur'an. The learned trial Court stopped recording
other evidence and recorded her statement to the effect that in case the petitioner states on
oath of Holy Qur'an that he had not gifted the land to her while in his senses the suit be
decreed otherwise it be dismissed. The petitioner accepted the offer and made the said
statement. On the same day the suit was decreed. Respondent No.1 filed an appeal which
has been allowed by a learned Additional District Judge, Mandi Bahauddin on 4-12-2006
who has set aside the said judgment and decree and remanded the case to the learned trial
Court directing that the remaining evidence be recorded and the suit be decided on the
basis thereof.
Page No. 1 of 3
2. Sh. Naveed Sheharyar, Advocate for the petitioner contends that the offer having been
made, accepted and oath having been taken accordingly the appeal itself was not
competent acid that the learned ADJ has acted without jurisdiction while passing the
impugned judgment and decree. He relies on the case of Mukhtar Ahmed Khan v.
Mushtaq Ahmad 1998 SCMR 2049, Muhammad Rafique and another v. Sakhi
Muhammad and others PLD 1996 SC 237 and Attiqullah v. Kafaytullah 1981 SCMR 162.
Learned counsel further contends that the reliance by the learned Additional District
Judge on the case of Ahmad Khan and others v. Jewan PLD 2002 SC 655, is rather
misplaced.
3. Malik Amjad Pervaiz, Advocate for respondent No.1, on the other hand, contends that
the impugned judgment is fully supported by the said case of Ahmad Khan and others
and further relies on the case of Muhammad Ali v. Maj. Muhammad Aslam and others
PLD 1990 SC 841.
4. I have gone through the copies of the records. I have already detailed above the
proceedings that took place before the learned trial Court. As noted by me above the
evidence of the deceased petitioner was concluded and thereafter .respondent No.1 had
entered in the witness box. After her examination-in-chief, she was subjected to lengthy
cross-examination. Towards almost the fag end thereto, the said statement was made by
respondent No.1 and immediately thereafter her statement was recorded. The offer was
accepted and oath was taken and the suit was decided. I have examined the judgment
cited by the learned counsel for the parties. To my mind the following excerpts quoted
from the judgment in the case of PLD 1990 SC 841 and reproduced by their lordships in
the case of Ahmad Khan and others at pages 658 and 659 wholly supports the observation
of the learned Additional District Judge in the impugned judgment:-
"In case such as the present, where it is not possible to lay down guiding
principles as to what facts or circumstances in a given case would induce a Judge
to permit a party to resile from either the offer or the acceptance, it is necessary
for the Court to guard itself and the parties against snap decisions taken by the
parties in this connection. More open than not, during examination of a party or a
witness or during a heated discussion or argument, a party in the excitement of the
moment may be led to make a snap decision in this respect. He may in the heat of
passion make such an offer, or accept such a one, which otherwise in a state of
cool deliberation he would not do. The Court should be careful to see that such
offers and acceptances are not recorded with the same snap speed with which they
are made, for such offers and acceptances would not be founded in piety and
grace and would not be made the highest level of truth. For no sooner a person
makes an offer to another to make a statement on the Holy Qur'an or his Holy
Book, whichever it may be, with regard to any matter or fact, the effect of which
will be to bind him in a particular manner, for good or for worse, he does so on
the assumption that the person who will accept it is conscious of his trust and
whilst making the statement on the Holy Book shall place himself figuratively
before his Maker and his Holy Prophet and state the truth, on pain of divine
wrath. The Court should, therefore, be somewhat circumspect in this matter and
refrain from permitting parties to enter into such agreements, which otherwise do
not appear to have been made by them in some reasonable frame of mind, or
which appear to be the result of indecent haste, of which otherwise, from the
apparent conduct of any of the parties, appear to be such as would make a
mockery of the other. The need for recording separate statements of the parties in
respect of the offer and acceptance made in such cases deserves to be over
emphasized, for which a procedure would give parties some short time to think
over the matter and extricate themselves from hasty decisions, before 'appending
their signatures to their statements. We do not wish to go down on the record as
suggesting that this procedure must invariably be observed, for there is no such
legal compulsion, nor do we want to suggest that certain safeguard suggested here
should be treated as rules of prudence to be observed in such cases, because
sections 9 to 11 of the Oaths Act do not admit of such instructions, but we would
say that all this may be treated as a note of caution; for a Court inasmuch bound to
ensure the solemnity of these proceedings, as the parties are bound to respect
Page No. 2 of 3
them."
5. It will be noted that it has been emphasized by their lordships that in such like manner
Courts are not required to act too promptly as has been done by the learned trial Court in
the present case. I therefore, do not find any ground being made out for interference with
the impugned judgment and decree in the exercise of revisional jurisdiction. Before I part
with this judgment I may note here that Khushi Muhammad, had died during the
pendency of this civil revision. C.M.1 of 2007 was filed for impleading his sister namely
Mst. Shakeela Bibi as a L.R. This C.M. was disposed of by me on 2-5-2007 subject to all
just and legal exceptions. Learned counsel for respondent No.1 questions the correctness
of several facts mentioned therein including the tact that Khushi Muhammad had
divorced Mst. Naziran Bibi respondent No.1. Apart from this the application itself gives
an impression that there are some other L. Rs. as well. Copy of pedigree table and some
other documents are annexed with this C.M. Since the suit is still to be decided by the
learned trial Court after recording the remaining evidence, I deem it appropriate that
requisite inquiry in terms of Order XXII, rule 5, C.P.C. be also conducted by the learned
trial Court in the matter of appointment of L.Rs. of Khushi Muhammad deceased
(petitioner/plaintiff). The office shall remit the said C.M. along with the documents
annexed therewith to the learned trial Court along with a copy of this order. The civil
revision accordingly is dismissed leaving the parties to bear their own costs.
F.B. /K-31/L Petition dismissed.
Page No. 3 of 3
2007 C L C 1372
[Lahore]
B ef ore Muhammad Akhtar Shabbir, J
Mst. RASHIDA ABDUL REHMAN----Appellant
Versus
ZAHOOR HUSSAIN and 5others----Respondents
Regular Second Appeal No.84 of 2003, decided on 23rd February, 2007.
(a) Contract Act (IX of 1872)---
----Ss. 2(e) & 10---Agreement/contract---Connotation---Existence of written contract

between parties not essential as contract could be inferred from conduct of parties---
Voluntary promise not creating any legal obligation between parties would not amount to
a contract---No contract would come into existence without intention of parties or by
mere giving quotations in response to tender notice---Principles.
Under the Contract Act, 1872, an agreement is an act in ]aw, whereby two or more
persons declare their consent as to any act or thing to be done or forborne by some or one
of these persons for the use of the others or other of them through the process of writing.
It is the essence of a contract that there should be an "aggregatio mentium" (the meeting
of the minds of the contracting parties). Where the parties are in agreement as to the
terms, it is not necessary that they should enter into a regular written contract. The
existence of the contract can be inferred from their conduct. A contract is a consensual
act, the parties being free to settle any terms they pleased. A contract creates legal
obligations. A promise which is voluntary and by which the parties do not intend to create
any legal obligation cannot amount to a contract. The mere fact that a person gave certain
quotations in response to the tender notice, even granting that it was the lowest quotation,
will not in any manner create an obligation on the person, who issued the tender notice
and no contract comes into existence by that act.
The intention of the parties to a contract must be looked at to determine whether a

contract has been executed or not. Where they did not intend to enter into a contract,
there can be no contract. Therefore, inspite of the fact .that an agreement is embodied in a
document, the parties can show even by oral evidence that when the document was
signed, they intended that it should not operate as an agreement and, therefore, there is no
contract at all.
(b) Contract---
----Tender notice---Mere giving quotations in response to Tender Notice would not create
contract between parties---Principles.
The mere fact that a person gave certain quotations in response to the Tender Notice,
even granting that it was the lowest quotation, will not; in any manner, create an
obligation on the person, who issued the Tender Notice and no contract comes into
existence by that act.
(c) Transfer of Property Act (IV of 1882)---
----S. 54---Contract Act (IX off 1872), S.2(e)---Sale of immovable property, contract of---
Essential terms stated.
A contract for the sale of immovable property is a contract that a sale of such property
shall take place on the terms settled between the parties. The essential terms of the sale of
immovable property are (i) payment of the sale price of property or promise to pay the
same by the purchaser to the seller; and (ii) the delivery of possession of the property sold
Page No. 1 of 9
by the seller to the purchaser. If these two essential terms of sale of the immovable
property are, determinable in the agreement between the parties with certainty, it may
constitute a valid agreement of sale between the parties.
The sale consideration of property is the essential term of the agreement and in the
absence of essential terms of agreement of sale, no agreement/contract of sale can come
into existence.
Messrs Karachi Gas Company Ltd. v. Messrs Fancy Foundation PLD 1984 Kar. 233 and
Shajar Ali Hati v. Esmail Sobhani 1985 CLC 342 rel.
(d) Specific Relief Act (I of 1877)---
----S. 12---Transfer of Property Act (IV of 1882), S.S4---Contract Act (IX of 1872),
S.2(e)---Oral agreement of sale of immovable property---Specific performance of such
agreement, suit for---Vendee based his claim on receipt showing payment of Rs.25,000 to
vendor---Proof---No independent witness was alleged to be present at the time of bargain
and execution of such receipt except vendee and his brother, whose statements were
contradictory to each other regarding place of bargain---Such receipt was not signed by
vendee or any independent witness---Receipt was silent as to essential terms and
condition of sale agreement, exact amount of sale price and detail of property---
Possession of property was not delivered to vendee---Vendor's brother had not read such
receipt before recording his statement in court---Vendee had failed to produce sufficient
and cogent evidence to prove transaction of sale and such receipt---Oral contract of sale
between vendee and vendor was lacking essential ingredients of a valid agreement---Suit
for specific performance on basis of such agreement could not be decreed---Suit was
dismissed in circumstances.
Custodian of Enemy Property v. Hushang M. Dastur PLD 1977 Kar. 377 and Qazi
Muhammad Saqib Khan v, Ghulam Abbas and 2 others 2003 MLD 131 rel.
(e) Specific Relief Act (I of 1877)---
----S. 12---Transfer of Property Act (IV of 1882), S.S4---Civil Procedure Code (V of

1908), O.VI, R.2 & O.VII, R.1(e)---Oral agreement of sale lacking ingredients of a valid
agreement---Effect---Plaintiff had to plead facts regarding contract desired to be
specifically enforced---Suit for specific performance on basis of such agreement could
not be decreed.
Miss Gul-e-Rana v. Muhammad Mansoor Khan and 4 others 2000 CLC 1673 and Abdul
Aziz and another v. Abdul Rehman and others 1994 SCMR 111 rel.
(f) Transfer of Property Act (IV of 1882)---
----S. 41---Subsequent vendee alleging not to have knowledge of earlier contract of

sale---Effect---Subsequent vendee would be deemed to have discharged burden, which
would shift to other party.
Sh. Nazir Ahmad v. Haji Ghulam Hussain and others 1985 CLC 7 rel.
(g) Transfer of Property Act (IV of 1882)---
----S. 54---Oral agreement of sale, if not specifying terms and conditions of agreement,
would not be valid in eye of law.
Qazi Muhammad Saqib Khan v. Ghulam Abbas and 2 others 2003 MLD 131 rel.
(h) Qanun-e-Shahadat (10 of 1984)---
----Art. 163---Oaths Act (X of 1873), S.9---Decision of case on basis of oath---Scope---

When both parties had led evidence or evidence was available and could be produced,
then resort to Art.163 of Qanun-e-Shahadat, 1984 could not be made---Principles.
Page No. 2 of 9
(i) Qanun-e-Shahadat (10 of 1984)---
----Art. 163---Oaths Act (X of 1873), S.9---Defendant's refusal to accept plaintiff's offer

for decision of case on basis of oath made on the day of arguments---Effect---No adverse
presumption would come against defendant for such refusal
Muhammad Sharif v. Bashir Ahmad 1987 CLC 2006; Shakirullah v. Hidayatullah and 3
others 1999 MLD 389 and Bashir Ahmad v. Muhammad Lugman 1999 SCMR 378 rel.
(j) Civil Procedure Code (V of 1908)---
----S. 100---Second Appeal---Concurrent findings of fact by courts below---Validity---

Such findings could always be disturbed by High Court in second appeal, where decision
was result of perverse application of evidence or based on misreading of evidence or
conclusions were drawn after ignoring vital piece of evidence on record.
Syed Khurshid Ahmed alias Wahid Hussain through General Attorney v. Rao Muhammad
Akram 2000 CLC 825; Madan Gopal and 4 others v. Maran Bepari and 3 others PLD
1969 SC 617; Nazar Muhammad and another v. Mst. Shahzada Begum and another PLD
1974 SC 22 and Muhammad Shoaib Alam and others v. Muhammad Iqbal 2000 SCMR
903 rel.
Asim Akram for Appellant.
Mobin Ahmed Siddiqui and Ch. Arshad Mehmood for Respondents.
Date of hearing: 23rd February, 2007.
JUDGMENT
MUHAMMAD AKHTAR SHABBIR, J.--- This regular second appeal arises out of the
facts of a civil suit for specific performance of contract dated 13-12-1996, whereby the
deceased Mukhtar Hussain predecessor-in-interest of respondents Nos.2 to 6 allegedly
agreed to sell the disputed property in favour of respondent No. 1 for a consideration of
Rs.5,25,000 at the rate of Rs. 1,10,000 per acre and received Rs.25,000 as token in the
presence of the witnesses. The additional payment worth Rs.2,00,000 was to be made till
12-1-1997. The remaining amount had to be advanced till 1-6-1997 at the time of
completion of the sale either through registration or mutation. As per the
plaintiff/respondent No.1 the deceased Mukhtar Hussain predecessor-in-interest of
respondents Nos.2 to 6 with mala fide intention alienated the property in favour of
defendant No.2 the present appellant through Mutation of sale No.1795 dated 16-2-1997.
The suit was contested by the present appellant as well as deceased Mukhtar Hussain
defendant by filing their written statements. During the pendency of the suit the vendor
Mukhtar Hussain died and his legal heirs were brought on the record. From the factual
controversy appearing on the pleadings of the parties, the learned trial Court led to frame
the following issues:--
Issues
(1) Whether defendant No. 1 executed an agreement to sell with the plaintiff on
13-12-1996 by means of which an agreement to sell pertaining to the suit property
was settled between them against an agreed sale price of Rs.5,25,000? OPP
(2) Whether plaintiff paid an earnest money of Rs.25,000 to the defendant No.1
on 13-12-1996? OPP
(3) Whether 12-1-1997 was settled as the date- for payment of Rs.2,00,000
between plaintiff and defendant No.1? OPP
(4) Whether the impugned Mutation No. 1795 dated 16-2-1997 is against facts
Page No. 3 of 9
and law liable to be set aside? OPP
(5) Whether the plaintiff is entitled to the decree for possession through specific
performance of contract as prayed for? OPP
(6) Whether the defendant No.2 is bona fide purchaser of the suit property against
valuable consideration`? OPD
(7) Whether the plaintiff has got no cause of action/locus standi to institute this
suit`? OPD
(8) Whether the plaintiff is estopped by his words and conduct to institute this
suit`? OPD
(9) Whether the plaintiff has instituted this suit with mala fide intention just to
blackmail the defendant as such the defendant is entitled to recover a special costs
of Rs.50,000 under section 35-A, C. P.C.'? OPD
(10) Relief'.
2. After recording, appreciating the evidence of the parties pro and contra, the learned
trial Court decreed the suit of the plaintiff/respondent No.1 vide, judgment and decree
dated 25-11-2002, Feeling aggrieved the present appellant preferred an appeal, which
came up for hearing before the learned Additional District Judge, Chiniot, who vide
impugned judgment and decree dated 12-11-2003 dismissed the same.
3. The learned .counsel for the appellant contended that the vendee/defendant deceased
Mukhtar Hussain had denied the execution of the receipt and sale of property in favour of
plaintiff/respondent No.1 and filed his written statement whereby he categorically denied
the execution of the sale receipt as well as transaction of sale. Further contended that the
plaintiff/respondent No.1 has failed to establish the bargain of sale Exh.P.1 as well as the
payment of the advance token money in accordance with Qanun-e-Shahadat Order, 1984.
Further contended that one of the witnesses of the plaintiff/respondent No.1 Mansab Dar
is real brother of the plaintiff/respondent No.1 whose testimony is not worth reliance
being interested witness. Further contended that the service of summons issued by the
Court on Abdul Rehman husband of the appellant is `manoeuvred' and it was not
confronted to him. Further contended that service of the husband of the appellant would
not be service of the appellant in the eye of law. It was further contended that the
appellant is a "bona fide purchase", for value without notice and possession of the
property was delivered to him by the vendor Mukhtar Hussain. Further contended that the
terms and conditions of the contract of sale have not been established by the plaintiff by
producing sufficient and convincing evidence. Further contended that none of the legal
heirs of the deceased/vendees Mukhtar Hussain has appeared in the Court in favour of the
plaintiff/respondent No.1. While on the other hand, learned counsel for the contesting
respondent No.1 vehemently opposed the arguments of the learned counsel for the
appellant contending that the receipt Exh.P.1 is proved on the record by the scribe of the
receipt as well as one of the marginal witnesses. Learned counsel for respondent No. 1
supported the judgments of the Court below.
5 (sic). I have heard the learned counsel for the parties and perused the record.
6. The question that boils down for determination by this Court is whether the deceased
defendant No. 1 Mukhtar Hussain had agreed to sell the suit property to the plaintiff
through Exh.P.1. Under the Contract Act, 1872, an agreement is an act in law, whereby
two or more persons declare their consent as to any act or thing to be done or forborne by
some or one of these persons for the use of the others or other of them through the
process of writing.
It is the essence of a contract that there should be an "aggregatio mentium" (the meeting
of the minds of the contracting parties). Where the parties are in agreement as to the
terms, it is not necessary that they should enter into a regular written contract. The
existence of the contract can be inferred from their conduct. A contract is a consensual
Page No. 4 of 9
act, the parties being free to settle any terms they pleased. A contract creates legal
obligations. A promise which is voluntary and by which the parties do not intend to create
any legal obligation cannot amount to a contract. The mere fact that a person gave certain
quotations in response to the tender notice, even granting that it was the lowest quotation,
will not in any manner create an obligation on the person, who issued the tender notice
and no contract comes into existence by that act.
7. The intention of the parties to a contract must be looked at to determine whether a

contract has been executed or not. Where they did not intend to enter into a contract,
there can be no contract. Therefore, inspite of the fact that an agreement is embodied in a
document, the parties could show even by oral evidence that when the document was
signed, they intended that it should not operate as an agreement and, therefore, there is no
contract at all. A contract for the sale of immovable property is a contract that a sale of
such property shall take place on terms settled between the parties. It is clear from the
above proposition of law that the essential terms of the sale of immovable property are:--
(a) Payment of the sale price of property or promise to pay the same by the
purchaser to the seller; and
(b) The delivery of possession of the property sold by the seller to the purchaser.
If these two essential teens of sale of the immovable property arc determinable in the
agreement between the parties with certainty, it may constitute valid agreement of sale
between the parties as laid down in the case of Messrs Karachi Gas Company Ltd. v.
Messrs Fancy Foundation PLD 1984 Kar. 233.
8. In the case in hand, in addition to the statement of the plaintiff P.W.2 Zaffar Abbas and
P.W.3 Mansab Dar appeared to establish the transaction of sale agreement. As per the
plaintiffs version before the execution of the receipt Exh.P.1 the transaction of sale was
struck off 4/5 days earlier. There is no independent witness of the transaction except the
plaintiff P.W.1 Zahoor Hussain and P.W.3 Mansab Dar real brother of the plaintiff, who is
an interested witness. It is admitted by the plaintiff that no person was present at the time
of bargain of the suit property from the place, where the bargain was struck off. He stated
that the bargain was -made in the house of the defendant/vendee. While P.W.3 Mansab
Dar, who is real brother of the plaintiff has deposed that the bargain was struck off on the
land in dispute. He also admitted that there was no other independent witness present
there at that time. On the day of bargain no amount was advanced to the
defendant/vendee Mukhtar Hussain. The plaintiff has based his case on a receipt of
payment of Rs.25,000 Exh.P.1., which was also not signed by any independent marginal
witness of the document. No term and condition of the sale agreement has been
mentioned in the said receipt neither detail of the property is reflected in the said so-
called document the receipt Exh.P.1 so much so at the end of that receipt the name of
Mukhtar Hussain vendor is written but it is not signed by him nor any of the marginal
witness. Surprisingly on the back page of this receipt the signature of Mukhtar Hussain
has been shown. The member of the identity card of Mukhtar Hussain is not mentioned
and it is also admitted position that none at the time of execution of this receipt except the
real brother and the scribe was present. So at all stages, at the time of making the bargain,
at the time of execution/writing of Exh.P.1 and at the time of effecting service of the
vendee, only Mansab Dar P.W.3 was shown present. Surprisingly no other independent
witness was available to the plaintiff/respondent No.1 and under this agreement the
possession of the property has also not been delivered to the plaintiff by the vendor and it
is admitted by the plaintiff and his witnesses that the possession of the property was
delivered by the vendor to Mst. Rashida Bibi with whom he has made an agreement to
sell and in this regard a mutation of sale was sanctioned by the revenue authorities.
9. The vendor Mukhtar Hussain has contested the suit, filed his written statement denying
the averments of the plaint as well as the sale agreement during his life time. From the
oral evidence on record or from the document Exh.P.1, the intention of the vendor is not
established that he agreed to sell the suit property in favour of the plaintiff. Rather it is
only a sort of receipt acknowledging a sum of Rs.25,000 as earnest money and not
showing essential terms of sale consideration time for completion of sale, payment of
balance of sale consideration or anything about delivery of possession of property, which
Page No. 5 of 9
creates serious doubts existing between parties about sale consideration. Burden of
proving sale transaction, payment of consideration has not been discharged by plaintiff
seriously. The description qua addresses of vendor and vendee F as well as the total
measurement of the suit property is not mentioned in the receipt Exh. P. 1. The document
relied by the plaintiff was not mentioning the most important term of contract of sale and
lacking the essentials of a contract;--
(i) Competent parties; (ii) Subject-matter; (iii) Legal consideration; (iv) Mutuality
of agreement, and (v) Mutuality obligations.
So it cannot be said that the parties were "ad idem" as to all the essential terms of sale. It
is held in the case of Custodian of Enemy property v. Hushang M. Dastur PLD 1977 Kar.
377 that the true test for deciding whether the parties had reached a concluded contract or
not, is to ascertain whether the parties were of one mind on all the material terms at the
time it is said to have been finalized between them and whether they intended that the,
matter was closed and concluded between them and in the light of the evidence which has
come on record in this case; it cannot be said that the parties were of one mind on the sale
consideration of the property in dispute. The receipt Exh. P.1 is silent with regard to the
exact amount of consideration of the property and the sale consideration of the property is
the essential term of the H agreement and in the absence of essential terms of agreement
of sale, no agreement/contract of sale could come into existence. Reference in this
context can be made to the case of Shajar Ali Hati v. Esmail Sobhani 1985 CLC 342.
10. Deep examination of the evidence produced by the plaintiff shows that P.W.2 the
alleged scribe of the document Exh.P.1 Zafar Abbas also admitted that -the terms of the
sale agreement have not been mentioned in this receipt. So much so the receipt Exh.P.1.
has not been proved in accordance with Quaun-e-Shahadat Order even at the time of 1
recording of the evidence of P.W.2 said receipt was not shown to him and in this regard,
he categorically stated in his statement that he saw only the photocopy of the receipt. He
further stated that he did not know the plaintiff before the writing of Exh.P.1. Mansab Dar
P.W.3 has, also admitted that he did not know Zafar Abbas P.W.2 at the time of execution
of the receipt Exh.P.1. He was cross-examined in this regard and he clearly stated that he
did not know, where Zafar Abbas P.W.2 was residing in those days. Mansab Dar P.W.3
has also not read the writing of the receipt Exh.P.1. Neither on the day of recording of his
statement he saw the said document. He stated that he saw the said document one day
earlier. The possession of .the property with Mst. Rashida Bibi vendee is also admitted by
the said witness. The oral contract of sale between the plaintiff and the vendor Mukhtar
Hussain lacks the ingredients of a valid contract/agreement and the suit for specific
performance on the basis of such agreement cannot be decreed. The plaintiff has
miserably railed by producing "sufficient and cogent" evidence to prove the
transaction/bargain of sale, execution of Exh.P.1. The above discussed evidence available
on the record and this factual and legal aspect of this case has not been considered by
both the Courts below. A vendee whose transaction of sale of the property and possession
for the same is admitted, cannot be deprived of the property on the basis of the above
referred sham transaction of' sale. Therefore, the findings of the Courts below on Issues
Nos.1, 2, 3 and 5 are reversed and decided against the plaintiff.
11. As stated in the preceding paragraphs the Rapat Roznamcha "Waqiati" 207 was
entered by the Patwari on the statement of Mukhtar Hussain on 11-2-1997 and 40 Kanals
land was sold for consideration of Rs.7,50,000 by the vendor and after the said sale with
the appellant by Mukhtar Hussain how could he sell the land in favour of the respondent
for a lesser price. There is no answer. Learned counsel for the respondents could not
answer this argument. From the record it reveals that the sale in favour of the appellant
was prior in time on 11-2-1997 and the sale mutation in this regard was sanctioned on 14-
2-1997 while Exh.P.1 has been executed on 13-2-1.997 so the plaintiff' and his witnesses
have admitted the sale agreement of the appellant with Mukhtar Hussain and delivery of
the possession, therefore, it cannot be said that the sale in favour of the appellant was
made by the vendor after the sale made in favour of the plaintiff: The important feature of
the case is the hastily the receipt Exh.P.1 was manoeuvred by the two brothers, the
plaintiff and Mansab Dar P.W.3 and the suit was filed on 15-2-1997 and on the same day
the service has been shown to have been effected on the husband of the appellant Abdul
Rehman which too with the connivance of the Process-Server, who was taken on
Page No. 6 of 9
motorcycle by Mansab Dar despite the fact that the Process-Server did not know him.
The whole story of sale agreement by the plaintiff with the vendor seems to have been
manoeuvred acid concocted. The findings of the Courts below on Issues Nos.4 and 6 are,
therefore, reversed.
12. Defendant No.2 Mst. Rashida Bibi claims to be bona fide purchaser of the suit
property for a valuable consideration without notice. The vendor Mukhtar Hussain sold
the property in favour of Mst. Rashida Bibi defendant and in this regard he approached
the Revenue. Patwari on 11-2-1997 and got recorded a Rapat Roznamcha Waqiati
Exh.D.2. The Revenue Patwari entered the mutation on the said date and produced before
the Revenue Officer who sanctioned the same on 14-2-1997. Mukhtar Hussain vendor
sold 40 Kanals of land situated in Khewat No.31133 through the Mutation of sale
No.1795 and at that time, no sale agreement was in the knowledge of the appellant Mst.
Rashida Bibi. The case of the plaintiff is that he made an agreement to sell with Mukhtar
Hussain on 13-2-1997 and as soon as he came to know about the sale of land with Mst.
Rashida Bibi, he immediately filed the suit for specific performance on 15-2-1997 and on
the same day the service of the process on Abdul Rehman the husband of Mst. Rashida
Bibi had been effected. It is very strange that on the day of institution of the suit
summons were issued against the appellant by the Court and the service on the same day
was effected bur as per the statement of P.W.4 Sabir Hussain the Process-Server, he was
taken to the residence of Abdul Rehman by Mansab Dar P.W.3, who was not personally
known to him on that day neither he had seen him thereafter. While effecting the service,
no witness of the locality was joined by the Process-Server. As per the report on the
backside of the summons issued, the Process-server has reported that Mst. Rashida Bibi.
was not available on that date and service of summons was effected on her husband
Abdul Rehman D.W.1 who had denied his signatures on the summons and the same have
also not been got compared by the plaintiff neither any findings in this respect was given
by the Court itself. The report of sale with Mst. Rashida Bibi by Mukhtar Hussain was
recorded in the Roznamcha Waqiati of the Patwari two days earlier from the alleged sale
agreement of the plaintiff with Mukhtar Hussain. The other is that the service of Abdul
Rehman husband of the appellant is not service of the appellant in the eye of law. Neither
P.W.1 plaintiff nor Mansab Dar P.W.3 who was the witness of effecting the service on D.
W.1 Abdul Rehman deposed a single word in this regard that the service on 15-2-1997
when the summons was issued by the clerk of the Court was effected in his presence. The
sale in favour of Mst. Rashida Bibi by the vendor is admitted by the plaintiff' as well as
his witnesses and real brother Mansab Dar P.W.3. He admitted that the sale transaction
was made by Mukhtar Hussain with Mst. Rashida Bibi. He also admitted that before the
transaction the sale. agreement was executed between Mukhtar Hussain acid Mst.
Rashida Bibi for a consideration of Rs.7,50,000 and it has also been admitted by him that
the possession under the sale was delivered by Mukhtar Hussain to Mst. Rashida Bibi
vendee/appellant and he has also admitted that at the time of writing of the stamp papers,
the possession of the land was delivered in favour of Mst. Rashida Bibi. There was no
evidence that the sale agreement between the plaintiff and Mukhtar Hussain vendor was
ever brought to the knowledge of Mst. Rashida Bibi. No notice was issued to her by the
plaintiff nor any oral evidence in this regard has been produced and brought on record.
Mere statement of the plaintiff and his brother is riot sufficient to prove that their
agreement of sale was in the knowledge of Mst. Rashida Bibi appellant. The appellant
has successfully established that she was bona fide purchaser of suit property in good
faith without notice for a valuable consideration. No evidence was available on the record
showing that the appellant had knowledge of the execution of the sale agreement in
favour of the plaintiff' as no entry of sale agreement in favour of the plaintiff was got
entered in the Roznamcha Waqiati (Daily Register) or in any of the Revenue Record nor
possession was delivered to him. Sufficient and convincing evidence was not available on
the record which could establish the assertions of the plaintiff. It is settled proposition by
the superior Court that it the subsequent transferee stating on oath that he had no
knowledge of the earlier contract he would be deemed to have discharged his burden and
in that event burden would shift to other party. Reference in this context can be made to
the case of Sh. Nazir Ahmad v. Haji Ghulam Hussain and others 1985 CLC 7. Oral
agreement not specifying terms and conditions of agreement is not valid in the eye of law
as laid down in the case of Qazi Muhammad Saqib Khan v. Ghulam Abbas and 2 others
2003 MLD 131.
Page No. 7 of 9
13. In a suit for specific performance the plaintiff has to assert that a contract exists
between him and the defendant. The plaintiff has to plead the facts regarding the contract
which he desires to be specifically performed where pre-requisite of a contract are
missing the plaintiff is not entitled for decree of specific performance. Reliance in this
context can be placed to the case of Miss Gul-e-Rana v. Muhammad Mansoor Khan and 4
others 2000 CLC 1673 in the case of Abdul Aziz and another v. Abdul Rehman and
others 1994 SCMR 111 it has been observed that .grant of specific performance of an
agreement being discretionary relief, can be refused even if execution of agreement was
proved.
14. Both the-Courts below have based their findings on the statement of the plaintiff. The
learned trial Court in its judgment has observed that the plaintiff has stated on Holy
Qur'an that late defendant No.1 had entered in agreement to sell the disputed property
with him and received an amount worth Rs.25,000 and defendant No.2 and her husband
were fully aware of that agreement. The plaintiff offered defendant No.2 or her husband
to rebut her allegation on oath on Holy Qur'an but the husband of defendant No.2 did not
accept the offer and requested the Court to dispose of the matter on merits.
15. The provisions of Article 163 of Qanun-e-Shahadat Order based on a principle that no
doubt decision of a case on oath is one of the established modes for disposal of the case
but at the same time, the Courts are bound to handle such cases with great care because
such cases involve sensitiveness and to avoid haste and rationalize emotional outbursts.
The superior Courts also laid down a principle by interpreting Article 163 that when
evidence is available and can be produced then resort to Article 163 cannot be made.
Where both the parties have led evidence, the provision of this Article should not be
applied. It has been held in the case of Muhammad Sharif v. Bashir Ahmed 1987 CLC
2006 where one party puts an application for decision of case on oath but other party
refuses, no adverse presumption from same could be drawn against the other party. In
another case of Shakirullah v. Hidayatullah and 3 others 1999 MLD 389 a Division
Bench of the Peshawar High Court has observed that decision of a case on basis of oath,
no doubt was one of established modes for disposal of cases, but at the same time Courts
were bound to handle such cases with great care because such cases involve
sensitiveness. The Court has to avoid haste and to rationalise emotional outbursts. Court
has also to scrutinize the relevant record and to record necessary statements. In the case
in hand no statement of offer and acceptance of the parties has been recorded. Only on
the day of arguments the plaintiff stated on oath, which was refused by the other party,
therefore, adverse presumption does not come against the appellant/defendant. In another
case of Bashir Ahmed v. Muhammad Luqman 1999 SCMR 378 the Honourable Supreme
Court has observed that refusal of a party to take oath, in contemplation of section 9 of
the Oaths Act, 1873, cannot result in itself defeating the claim or defence of that party.
16. It has also been observed in case of Syed Khurshid Ahmed alias Wahid Hussain
through General Attorney v. Rao Muhammad Akram Khan 2000 CLC 825 that it is a
view that High Court in second appeal ordinarily cannot interfere with concurrent
findings of facts. This, however, is not an absolute rule as this Court cannot shut its eyes
when there was an apparent misreading of evidence and manifestly illegal conclusions
had been drawn by Courts below. Manifest injustice could not be permitted to be
perpetrated simply for the reason that in second appeal High Court should not have
looked at the evidence -which formed the basis for the findings recorded by the Courts
below. The Honourable Supreme Court in the case of Madan Gopal and 4 others v. Masan
Bepari and 3 others PLD 1969 SC 617 and Nazar Muhammad and another v. Mst.
Shahzada Begum and another PLD 1974 SC 22 has observed that finding of fact arrived
at by Court below on evidence misread and misinterpreted, Court of second appeal is
entitled to review evidence.
17. It is settled proposition of law that concurrent findings of fact recorded by the two
Courts below would not be disturbed by the High Court in second appeal, but could
always be disturbed and reversed on the ground that the decision was based on
misreading of evidence and that it was a result of perverse application of evidence of that
the conclusions were drawn after ignoring vital piece of evidence on record. Reference
in. this context can be made to the case of Muhammad Shoaib Alam and others v.
Muhammad Iqbal 2000 SCMR 903. It has further been observed by the Honourable
Page No. 8 of 9
Supreme Court that if an issue of fact has not been properly determined by the lower
Courts by reason of any substantial error or defect of drawing a wrong inference about
the correct legal position which materially affected the decision on merits, the High Court
in second appeal could correct such error in the interest of substantial justice, Reference
in this context can be made to the case of Ashraf Ali (deceased) through his legal heirs
and others v. Maryam Bibi and 4 others 2004 SCMR 1536. In another case of
Muhammad Sharif and others v. Abdul Rehman 2004 SCMR 1571 the Honourable
Supreme Court observed that the High Court was justified in law to reappraise the
evidence of the witness to arrive at a conclusion whether the appraisal of their evidence
by the trial Court in its judgment dismissing the suit was correct. Supreme Court itself
compared the findings recorded by High Court and the statements of the witnesses
produced by defendants in the original record and the judgment passed by High Court
was affirmed.
18. For the foregoing reasons, this appeal is accepted and the judgments and decrees of
the Courts below dated 25-11-2002 and 12-11-2003 are set aside and the suit filed by the
plaintiff/respondent No.1 is dismissed. There shall be no order as to costs.
S.A.K./R-14/L Appeal accepted.
Page No. 9 of 9
2006 Y L R 1615
[Lahore]
Before Jawwad S. Khawaja, J
ALLAH BAKHSH and 7 others---Petitioners
Versus
Mst. BHAGAN and 24 others---Respondents
Civil Revision No. 1211 of 1999, heard on 17th October, 2005.
Specific Relief Act (I of 1877)---
----S.42---Limitation Act (IX of 1908), S.18---Civil Procedure Code (V of 1908), S.11---

Qanun-e-Shahadat (10 of 1984), Arts.117, 118 & 163---Suit for declaration---Suit was
decreed and decree upheld in appeal---Execution of sale-deed---Proof---Contention of
defendants was that earlier suit filed by three of present plaintiffs was withdrawn on
statements of parties and plaintiffs had acknowledged the validity of disputed sale-deed---
Date of knowledge of disputed sale-deed was a question of fact which was supported by
evidence, therefore, subsequent suit filed by plaintiffs was not time-barred---Mere filing of
earlier suit by some of the plaintiffs who had no nexus, whatsoever with the suit property,
could not have possibly be operated as res judicata in subsequent proceedings because
nothing was on record to prove that owner of land/father of plaintiffs' was ever served or
was otherwise shown to have had knowledge of disputed sale-deed---Nature of earlier suit
and manner in which it was withdrawn, suggested absence of bona fides---Witnesses
produced by plaintiffs having testified on oath that no sale-deed had been effected between
parties, burden of proof, had shifted upon defendants, who failed to discharge the same as
they neither produced marginal witnesses nor the testimony of one of defendants could be
given weight in absence of affirmative evidence---Findings of Courts below were thus not
legally sustainable---Dismissal of suit to the extent of three plaintiffs who had accepted the
validity of disputed sale-deed in previous suit, was affirmed, while suit to the extent of rest
of plaintiffs was decreed.
Ch. Muhammad Rafiq Azhar for Petitioners Nos.1 and 5 to 8.
Nemo for other Petitioners.
Seerat Hussain Naqvi for Respondents Except No.18.
Hassan Ahmad Khan Kanwar for Respondent No.18.
Date of hearing: 17th October, 2005.
JUDGMENT
JAWWAD S. KHAWAJA, J.---The petitioners/plaintiffs filed a declaratory suit on 20-2-

1989 claiming title to the suit land measuring 63 Kanals 3 Marlas. Their case was that
their father, namely, Sher Muhammad was the owner of the land and had mortgaged the
same in favour of the respondents vide Mutation No.206 sanctioned on 18-5-1963. It was
contended that the respondents had thereafter fraudulently fabricated the sale-deed, dated
16-8-1972 and had obtained its registration.
2. The defence set up by the respondents/defendants was that the disputed sale deed
(Exh.D-1) had, in fact, been executed in their favour by Sher Muhammad. They also
produced on record a plaint earlier filed by Nazir Ahmad laved, Muhammad Ali and
Shahadat Ali (petitioners Nos. 2, 3 and 4) sons of Sher Muhammad wherein these three
petitioners had, through a consent order, acknowledged the validity of the aforesaid sale
deed.
Page No. 1 of 2
3. The learned Courts below have proceeded on the premise, firstly, that the aforesaid suit
operated as res judicata in the present case and, secondly, on- the ground that the present
suit, which was filed on 20-2-1989 challenging the aforesaid sale-deed, dated 16-8-1972,
was time barred.
4. Both premises noted above are not legally tenable in the circumstances of the present
case. Firstly, it is to be noted that Sher Muhammad was very much alive at the time of the
earlier suit and had, in fact, been impleaded as defendant No.6 therein. The aforesaid suit
was withdrawn by petitioners Nos. 2, 3 and 4 on the basis of statements of the parties but
Sher Muhammad, admittedly, did not make any statement and nor was he, in fact, present
when the earlier suit was withdrawn. The record does not show that Sher Muhammad had
been served in the earlier suit or was aware of its filing. In these circumstances, it is quite
obvious that petitioners Nos.2, 3 and 4 had no cause of action and had no nexus
whatsoever with the suit property. Therefore, the suit filed by them could not possibly
operate as res judicata in the present proceedings.
5. Secondly, the suit of the petitioners was not time barred because the petitioners other
than petitioners Nos.2, 3 and 4 asserted that the sale deed was fraudulent and forged and
that they had become aware of it only when they had made an attempt to repay the
mortgage money and the respondents/defendants had informed them of the existence of
the sale deed. The learned Courts below have primarily been motivated in deciding the
question of limitation against the petitioners on the basis of the earlier suit filed by
petitioners Nos.2, 3 and 4 wherein the sale deed, dated 16-8-1972 has been mentioned.
The date on which the petitioners got knowledge of the disputed sale deed, was a
question of fact. The date of knowledge alleged by the petitioners/plaintiffs is supported
by the evidence on record. The mere filing of an earlier suit by. petitioners Nos. 2, 3 and
4 mentioning the disputed sale deed therein, does not prove that Sher Muhammad had
knowledge of the said sale deed, particularly, in view of the evidence which shows that
petitioners Nos, 2, 3 and 4 had no right in the suit property and Sher A Muhammad, who
had been arrayed as defendant No.6 in their suit, had neither been served nor was
otherwise shown to have had knowledge of the sale deed. Additionally, the very nature of
the earlier suit and the manner in which it was withdrawn, suggests an absence of bona
fides.
6. In the foregoing circumstances, the two grounds which prevailed with the learned
Courts below for dismissing the suit of the petitioners, are not legally, sustainable and the
same are, therefore, set aside.
7. Coming next to the main question as to whether Sher Muhammad had, indeed, sold the
suit property to the defendants, it is noteworthy that the P.Ws. produced by the petitioners
clearly testified on oath that no such sale had been effected. It was, therefore, incumbent
upon the respondents/defendants to produce evidence to prove the disputed sale deed.
This they have not done. When learned counsel for the respondents was asked to explain
whey the marginal witnesses to the sale deed were not produced, he could not give any
justification for this material omission. He has relied on the testimony of Mukha (DW-1)
who is one of the defendants. His testimony, however, cannot be given weight in view of
the fact that the onus of proving the disputed sale deed had shifted to the defendants and
it was thereafter for them to produce affirmative evidence for proving that the sale deed
had, in fact, been executed by Sher Muhammad.
8. In the foregoing circumstances, the suit to the extent of petitioner No.1,

namely, Allah Bukhsh and petitioners Nos. 5 to 8 is decreed. In view of the fact that the
petitioners Nos. 2, 3 and 4, namely, Nazir Ahmed Javed, Muhammad Ali and Shahadat
Ali had earlier filed a suit accepting the validity of the disputed sale deed and also did not
appear in the present suit to dispute the filing of their earlier suit and the stance adopted
by them therein, the dismissal of the suit to their extent is affirmed.
9. The petitioners Nos. 1 and 5 to 8 shall also be entitled to their costs throughout.
F.B./A-655/L Petition accepted.
Page No. 2 of 2
2006 Y L R 2074
[Peshawar]
Before Ijaz-ul-Hassan Khan, J
Mst. BULBULA and others---Petitioners
Versus
ABDULLAH and others---Respondents
Civil Revision No.737 of 2004, decided on 15th May, 2006.
Oaths Act (X of 1873)---
----Ss.8. 9, 10 & 11---Specific Relief Act (I of 1877), S. 42---Qanun-e-Shahadat (10 of

1984), Art. 163---Suit for declaration---Decision of case on basis of oath on Holy
Qur'an---Plaintiffs through their Special Attorney, moved application for decision of case
on basis of oath on Holy Qur'an---Said offer was accepted by defendants and pursuant to
oath taken by them, suit was dismissed by the Trial Court and that judgment was upheld
by Appellate Court---Oath having been taken by defendants which emanated from the
offer made by plaintiffs of their own free will, accord was governed by Ss.8 to 11 of Oath
Act, 1873 and not by Art.163 of Qanun-e-Shahadat, 1984---Plaintiffs having offered to
the defendants to decide matter on basis of oath, could not be allowed to take a
somersault and agitate that being illiterate 'Pardanashin' ladies they were un-aware of the
legal consequences of that oath---Settlement to decide matter on oath, would constitute
valid agreement from which parties could not conveniently wriggle out, unless contract
was ex facie shown to be void or incapable of implementation, which was not the case
here.
Muhammad Ali v. Major Muhammad Aslam and others PLD 1990 SC 841;
Sheikh Muhammad Bashir Ali and others v. Sufi Ghulam Mohi-ud-Din 1996 SCMR 813;
Bhore' Khan v. Noor Din PLD 1993 Pesh.72; Aziz-ur-Rehman v. Government of N.-
W.F.P. ' through Secretary, Local Government and Rural Development Department, N.-
W.F.P., Peshawar and 4 others PLD 1996 Pesh.51; Haji Muhammad Siddique v. Province
of Punjab and others 1994 MLD 821; Abdur Rehman v. Master Abdul Latif 1999 CLC
573; Kamal Din and others v. Mst. Nawab Bibi and others PLD 1988 Lah.281 and
Muhammad Luqman v. Bashir Ahmad PLD 1994 Kar.492 ref.
Khalid Khan for Petitioners.
Sohail Akhtar for Respondents.
JUDGMENT
IJAZ-UL-HASSAN KHAN, J.---This civil revision has arisen out of a suit brought by
Mst. Bulbula and her sisters, plaintiffs against their brother Abdullah and others,
defendants, for declaration to the effect that plaintiffs were legal heirs of Muhammad
Qayum and entitled to inherit 3/11 share in his legacy and defendants had no right to
deprive the plaintiffs of their due entitlement or interfere in their rights. The answering
defendants in their joint written statement resisted the suit and denied the claim of the
plaintiffs.
2. On 9-12-2003, .plaintiffs through their Special Attorney, moved an application

for decision of the case on the basis of oath, on Holy Qur'an. The offer was accepted by
defendants and pursuant to an oath taken by them on the Holy Qur'an, suit was dismissed
by judgment and decree dated 9-12-2003, passed by learned Civil Judge/Illaga Qazi, Wari
Dir. An appeal was preferred thereagainst, which did not succeed. The same was
dismissed by learned Additional District Judge/Izafi Zilla Qazi, Wari Dir, by judgment
Page No. 1 of 2
and decree dated 9-4-2004, giving rise to the filing of instant civil revision.
3. Mr. Khalid Khan, Advocate, appearing on behalf of the petitioners, bitterly criticized
the impugned judgments and decrees of the two Courts below and attempted to argue that
Article 163 of the 'Qanun-e-Shahadat' 1984, envisaged two oaths, one to be taken by the
plaintiff in support of his claim and the other by the defendant to deny the plaintiff's
claim but unfortunately, in the instant case, the learned trial Court had, not called upon
the petitioners to deny the respondents' claim on oath, after he had taken oath in
support of his claim and has thus committed an illegality and material irregularity
within the meaning of section 115 of the Code of Civil Procedure and that the learned
trial Court had decided the case on oath in a mechanical manner without application
of independent judicial mind, which has seriously prejudiced the interest of the
petitioners. In this regard, reliance was placed on Muhammad Ali v. Major
Muhammad Aslam and others (PLD 1990 SC 841).
4. Mr. Sohail Akhtar, Advocate, representing the respondents, on the contrary, fully
supported the impugned judgments and decrees of the Courts below and maintained
that the oath taken by the respondents, being the outcome of the offer made by the
petitioners was inviolable and the procedure followed by the learned trial Court being
in consonance with the provisions of the Oaths Act, 1873 was not open to exception.
To substantiate the contentions, reliance was placed on Sheikh Muhammad Bashir Ali
and others v. Sufi Ghulam Mohi-ud-Din (1996 SCMR 813), Bhore Khan v. Noor Din
(PLD 1993 Peshawar 72) and Aziz-ur-Rehman v. Government of N.-W.F.P. through
Secretary, Local Government and Rural Development Department, N.-W.F.P.,
Peshawar and 4 others (PLD 1996 Peshawar 51).
5. Having considered the matter from all angles, in the light of the material on file, I
find that contentions raised by the learned counsel for the petitioners do not carry
weight, as the oath taken by the respondents having emanated from the offer made by
the petitioners of their own free-will and accord is governed by sections 8 to11 of the
Oaths Act, 1873 and not by Article 163 of the 'Qanun-e-Shahadat' Order, 1984. The
oath within the contemplation of sections 8 to 11 of the Act (ibid) stems from a
voluntary agreement between the parties and when taken has a binding effect, leaving
the party making the offer with no choice to turn around and strike a discordant note.
The record of the case clearly points out that the learned trial Court had not acted with
undue haste but had first recorded separate statements of the parties on oath in respect
of the offer and acceptance and then taken the matter to its logical end. The
petitioners had thus plenty of time to think over the matter and resile from the offer.
The petitioners having offered to the respondents to decide the matter on the basis of
oath, cannot be allowed to take a somersault and agitate that being illiterate
'Pardanashin' ladies, petitioners were un-aware of the legal consequences of this oath
and as such, matter be remanded to the trial Court for decision on merit. The
petitioners agreed to passing of decree in accordance with special oath of respondents
on Holy Qur'an. It is not denied that settlement to decide the matter on oath constitute
valid agreement from which parties cannot conveniently wriggle out unless contract is
ex facie shown to be void or incapable of implementing, which is not the case here. If
an authority is needed on the point, reference can be made to Haji Muhammad
Siddique v. Province of Punjab and others (1994 MLD 821), Abdur Rehman v. Master
Abdul Latif (1999 CLC 573), Kamal Din and others v. Mst. Nawab Bibi and others
(PLD 1988 Lahore 281) and Muhammad Luqman v. Bashir Ahmad (PLD 1994
Karachi 492).
In view of the above, finding no substance in this civil revision, I dismiss the same,
with no order as to costs.
H.B.T./106/P Revision dismissed.
Page No. 2 of 2
2006 P Cr. L J 19
[Lahore]
Before Ali Nawaz Chowhan, J
SIRAJ DIN---Petitioner
Versus
THE STATE and 4 others---Respondents
Writ Petition No.3603 of 2005, decided on 14th September, 2005.
Criminal Procedure Code (V of 1898)---
---S. 516-A---Qanun-e-Shahadat (10 of 1984), Art.163---Constitution of Pakistan (1973),

Art.199---Constitutional petition---Order passed on oath---Validity---Matter pertained to
Superdari of a trolly---Magistrate directed the parties to have recourse to Civil Court for
the resolution of the dispute of the trolly between them, whereafter the same was directed
to be handed over by the police to the party declared as its owner---Sessions Court,
however, in revision petition decided the matter on oath by means of the impugned
order---Validity---First Appellate Court while exercising visitorial jurisdiction could not
have disposed of the said matter through a special oath in disregard of Art.163 of the
Qanun-e-Shahadat, 1984, and the settled law---Court below appeared to be totally
unaware of the law which had acted impulsively in passing the impugned wrong order---Said
order was set aside accordingly and the case was remanded to Sessions Judge for disposing
of the revision petition on merits in accordance with law.
Bashiran Bibi v. Nisar Ahmad Khan PLD 1990 SC 83 and Khalid Nawaz v. The State 1999
PCr.LJ 391 ref.
Ashfaq Qayyum Cheema for Petitioner.
Muhammad Tayyab Tahir for Respondent No.2.
M. Ghafoor, A.S.-I.
ORDER
ALI NAWAZ CHOWHAN, J.--- Through this writ petition an order, dated 28-1-2005,
passed by the learned Additional Sessions Judge, Sheikhupura is being questioned. The
relevant order being short is reproduced below in extenso:--
"On 25-1-2005 the respondent and the learned counsel have made statement that if
Muhammad Anwar son of Akbar Ali caste Dogar, resident of Chak No.20/R.B. is
called and his statement is recorded on oath, then the matter be decided according to
oath. He was summoned. He is present in the Court. He on special Oath has stated
that he has received the sale amount from Liaquat Ali respondent of the trolly in
dispute and has delivered the same to him. Therefore, in view of his statement the
revision petition is dismissed. File be consigned to the record room."
2. On the basis of this order of 28-1-2005, the connected revision petition was also disposed
of through the following order:--
"For the reasons recorded in connected revision petition the petition is accepted. File
be consigned to the record room.
The order is written in the connected revision petition titled Siraj Din v. Liaquat Ali
bearing No.9/14-1-2005.
3. The matter pertains to Superdari of a trolly. The learned Judicial Magistrate in case F.I.R.
Page No. 1 of 3
No.11 of 2004 pertaining to Police Station Bhikki, Sheikhupura while disposing of the
Superdari application in the same matter observed as follows:--
"As per record, local police firstly observed that the disputed trolly belongs to
petitioner Siraj Din while Investigating Officer has submitted reports before the Court
and secondly that the investigation was going on regarding the title to the disputed
property. In this situation, the intention of the local police is impliedly seems to be in
favour of the petitioner No.1 Siraj Din. Whereas petitioner Liaquat Ali has produced
the copies of affidavit, statements, and agreement in their favour from Muhammad
Anwar Dogar original owner of the trolly. Also Siraj Din has failed to produce any
direct entitlement from original owner. In this situation, many questions are arisen i.e.
"why the trolly went into the possession of Siraj Diraj Din" "Why Liaquat Ali did not
lodge an F.I.R. for the theft of trolly against Siraj Din when the trolly not be handed
over to the person from whose possession it was lastly taken?" The above said all
questions are still unanswered because the Investigation Officer has given his final
report which is evasive in nature and has not cleared the entitlement of any party
upon it. Also no registration lies on it. Consequently, I am of the opinion that the
disputed trolly may not be handed over to any party until and unless his ownership is
cleared. So, I observe that the parties may have recourse to the Civil Court for the
resolution of the dispute of trolly between them and the local police is directed to
hand over the trolly to the party who is declared to be the owner of it by the Civil
Court. With this observation, files of both the petitions are hereby consigned to the
record after its due completion. "
4. The question to be seen is whether such a mater could have been disposed of by the
learned first Appellate Court while exercising visitorial jurisdiction through a special oath as
was done in the present case. Reference may be made to Article 163 of the Qanun-e-Shahadat
Order, 1984 which reads as follows:--
"163. Acceptance or denial of claim on oath.--- (1) When the plaintiff takes oath in support of
his claim, the Court shall, on the application of the plaintiff, call upon the defendant to deny
the claim on oath.
(2) The Court may pass such orders as to costs and other matters as it may deem fit.
(3) Nothing in this Article applies to laws relating to the enforcement of Hudood or other
criminal cases. "
5. Reference may also be made to the case of Bashiran Bibi v. Nisar Ahmad Khan PLD 1990
SC 83, wherein it was observed as follows.---
"The sanctity of the Holy Qur'an is such that it cannot be brought in such-like matters
depending upon the convenience or whim of a party.
We wish to observe that the High Court was not right to countenance, when
seized of only a bail application, the procedure whereby one of the accused
was permitted to take oath in a mosque with regard to the guilt or innocence of
himself and the other accused persons.
Moral standards as they are these days the approval of such a procedure by
the High Court would throw the entire administration of the criminal justice
into disarray."
As well as to the case of Khalid Nawaz v. The State 1999 PCr.LJ 391, wherein it
was observed as follows:-
"We have seen with grave concern that an effort was made by the trial Court
to decide the case on special oath of Muhammad Bashir, A.S.-I. with respect
to the recovery of the heroin. Initially Khalid Nawaz appellant agreed but
later on resiled. In our view the aforesaid portion of the working of trial
Court cannot be approved keeping in view the mandatory provisions
contained under Article 163 of the Qanun-e-Shahadat Order, 1984 according
Page No. 2 of 3
to which the acceptance or denial of claim on oath with respect to a civil
dispute has been provided and allowed while according to para. 3 of the
aforesaid Article 163 "Nothing in this Article applies to laws relating to the
Enforcement of Hudood or other criminal cases". It meads that the criminal
case could not be decided on the special oath of Muhammad Bashir, A.S.-I.
P.W.3. The aforesaid working, even if carried on, would have proved to be an
exercise in futility. It would be instructive to pass the remark that trial Court
should refrain from deciding the criminal cases on oath."
6. This Court is sorry to observe that despite ruling given in the case of Khalid
Nawaz (ibid), the matter was decided on special oath which was wrong. It further
appears that the Court below was totally unaware of the law and acted impulsively
in doing what it did.
7. Under the circumstances, this revision petition is accepted and the order, dated
28-1-2005 is set aside and the case is remanded to learned Sessions Judge,
Sheikhupura with direction that he disposed of the revision petition on merits in
accordance with law and within one month from today. A copy of this order will be
communicated to him immediately.
N.H.Q./S-455/L Case remanded.
Page No. 3 of 3
2006 C L C 144
[Quetta]
Before Raja Fayyaz Ahmad and Iftikhar Muhammad Choudhary, JJ
Haji NAUROZE KHAN---Appellant
Versus
Malik RAZ MUHAMMAD and 2 others---Respondents
Regular First Appeal No.5 of 1998, decided on 14th May, 1998.
(a) Civil Procedure Code (V of 1908)---
----O. I, R.10 & O.XX, R.10---Qanun-e-Shahadat (10 of 1984), Art. 163---Case fixed for
final decision after hearing arguments of parties---Application to implead transferee
pendente lite as party with a prayer under Art. 163 of Qanun-e-Shahadat, 1984 to
administer oath to parties in this regard---Alleged sale was neither supported by any
document nor shown as to when or by which process or against what consideration was
finalized---Validity---Plaintiff was not having any positive basis to prima facie indicate
creation of such transferee's interest in suit property---Application under Art. 163 of
Qanun-e-Shahadat, 1984 was not relating to plaintiff's claim as made in the suit, but was
relating to other fact or event relatable to subject of suit---Both such applications were
rejected in circumstances.
1987 CLC 2006 ref.
----Art. 163---Scope of provisions of Art.163 of Qanun-e-Shahadat, 1984---Such

provisions primarily meant in respect of plaintiff's claim as made in the suit, but could not
be resorted to in 1especct of any other fact or event relatable to subject-matter of suit.
(c) Islamic law----
--- Pre-emption, right of---Classes of persons entitled to claim such right, highlighted.
Under Islamic Law, only following classes of persons and no others are entitled to claim
pre-emption, namely: (1) a co-sharer in the property, (2) a participator in amenities and
appendages, such a right of way or a right to discharge water; and (3) 'owners of
adjoining immovable property. The first of these classes excludes the second class, and
the second excludes the third one.
(d) Qanun-e-Shahadat (10 of 1984)----
---Art. 133---Ownership of land adjoining to suit-land, claim of---Non-production of

document of title or Revenue Record, but only plaintiff's oral assertion in respect of such
claim---Failure of defendant to challenge such position during cross-examination of
plaintiff---Effect---Defendant would be deemed to have admitted such claim of plaintiff.
(e) Islamic law---
---- Pre-emption ---Pre-emptor's claim of his being owner of land adjoining to suit-land---
Proof---Statement of one witness was that pre-emptor's land was at a distance of 3/4
kilometers from suit-land, while other witness deposed that he had no knowledge about
contiguity of pre-emptor's land to suit-land --- Pre-emptor himself did not depose about
such fact ---Pre-emptor's land, held, was not adjacent to suit-land.
(f) Islamic law---
Page No. 1 of 15
----Pre-emption suit ---Pre-emptor claimed to be owner of land falling in Khasra "K"
adjacent to suit-land---Revenue Record showed such Khasra to be "Shamilat" comprising
of "Ghair Mumkin Lohra" (i.e. Nullah/Sailaba Drain)---Revenue Record relating to
"Shamilat owners" in such Khasra was not produced---Revenue Record produced did not
show pre-emptor as co-owner in Shamilat land under such Khasra---Held: Suit was not
based on such claim of ownership---No right of pre-emption could be claimed against
such nature of land in absence of "Shafi-e-Khalit", lacking in the present case---No land
owned by pre-emptor was located adjacent to suit-land---Suit was dismissed in
circumstances.
1979 SCMR 360 fol.
(g) Islamic law---
---- Pre-emption, right of---Property in nature of "Sailaba Drain"---Effect---No right of

pre-emption could be claimed against such nature of property in absence of right of
"Shafi-i-Khalit".
1979 SCMR 360 fol.
(h) Islamic law---
---- Pre-emption ---Talb-e-Ishhad, ' performance of---Pre-emptor's knowledge about place

of residence of vendee---Non-making of such Talb to vendee due to his non-availability,
but its making to his Incharge of disputed land---Validity---In case of non-availability of
vendee, such demand as per Islamic Law could be validly made to vendor and if same
was not practicable to lodge claim of pre-emption with least delay, but such permissible
course had not been adopted---Such agent/incharge was not shown to have authority to
accept such Talb on behalf of vendee---Performance of such Talb was not proved in
circumstances.
(i) Islamic law---
---- Pre-emption ---Talbs, performance of---Obligatory for pre-emptor to prefer required

Talbs in accordance with norms of Islamic Law from which no departure would be
permissible ---Talb-e-Ishhad made to a stranger would not exist nor carried any sanctity
under Islamic Law---Intention of pre-emptor to exercise right of pre-emption in
preferring claim by making demands must be clear, unambiguous and consistent---
Principles.
In order to assert the claim of pre-emption, it is always obligatory for a pre-emptor to

make the required Talbs in accordance with the norms of Mohammedan Law, to which no
departure is permissible.
Talb-e-Ishhad not made to a person to whom it is required to be made does not exist and
carries no sanctity under the Mohammaden Law. The manner in which the prescribed
demands are to be made must be strictly observed and any deviation by introducing one's
own mode of preferring Talb-e-Ishhad to a stranger is not recognized under the law of
pre-emption.
The intention of pre-emptor in preferring the claim must be manifest about the exercise of
such right irrespective of the words or manner in which it is made; and therefore, the
intention of pre-emptor in the exercise of his right of pre-emption in preferring the claim
by making the demands must be manifest i.e. clear, unambiguous and consistent. The
expression "intention to be manifest" is relatable to the words or the manner in which the
right of pre-emption is exercised by a pre-emptor.
PLD 1990 Pesh. 181; 1996 SCMR 856; 1987 CLC 2006; 1973 SCMR 252 and PLD 1995
Quetta 1 ref.
PLD 1990 Pesh. 181 fol.
Page No. 2 of 15
(j) Islamic law---
---- Pre-emption ---Talb-e-Muwathibat and Talb-e-Ishhad, performance of---Essential

requirements stated.
In respect of Talb-e-Muwathibat, all that is required is that a pre-emptor, on acquiring

knowledge of sale of immovable property to which right of pre-emption is available to
him, has to immediately assert his right of pre-emption and for the exercise of such right,
presence of two witnesses is not essential, thus, non-production in evidence the second
witness to this Talb would not invalidate it. Thereafter with least practicable delay the
pre-emptor has to assert the second demand i.e. Talb-e-Ishhad either in the presence of
the buyer or the seller in presence of at least two witnesses, which should be in express
terms so as to be manifest of his intention without any ambiguity. The condition
precedent for the exercise of right of pre-emption i.e. performance of Talb-e-Muwathibat
and Talb-e-Ishhad must be strictly observed supported with clear proof thereof.
Where Talb-e-Ishhad was not made immediately after the first demand, but was made on
the next day and for such delay no explanation was given, the delay so caused in making
Talb-e-Muwasibat would be fatal to the right of pre-emption.
Where pre-emptor and his witnesses did not mention that while asserting the second
demand reference of the earlier claim of pre-emption was made, non-observance of such
a prescribed condition would be fatal to the claimed right of pre-emption and the failure
to make Talbs in the prescribed manner would extinct the right of pre-emption, as such
conditions are required to be observed strictly.
PLD 1995 Quetta 1 and 1973 SCMR 252 ref.
(k) Islamic law---
----Pre-emption suit ---Talb-e-Muwathibat and Talb-e-Ishhad, performance of --Proof---

Both pre-emptor and his witness contradicted each other about place, where Talb-e-
Muwathibat was exercised---Statements of pre-emptor's witnesses as to performance of
Talb-e-Ishhad were conflicting on material points---Held: Pre-emptor had failed to prove
Talbs and thus, was not entitled to decree for possession through pre-emption..
Muhammad Riaz Ahmed for Appellant.
Ehsanulhaque for Respondent.
JUDGMENT
RAJA FAYYAZ AHMAD, J.--- This appeal under section 96, C.P.C. has been preferred
against judgment and decree dated 3-1-1998, passed by the Senior Civil Judge, Quetta
whereby suit filed by the appellant for pre-emption has been dismissed, with the. prayer
to set aside the impugned decree and to decree the suit of the appellant/plaintiff with the
costs.
2. Briefly, the stated facts of the case are that on 3-4-1997 the appellant instituted suit for
possession through pre-emption of land situate at Mohal Chashma Baleli Mouza Baleli
Tapa Baleli Tehsil and District Quetta against the respondents on the stated averments
that the appellant/plaintiff is the owner of lands situate in Mohal and Mouza Chashma
Baleli Tapa Baleli Tehsil Quetta as per Khatooni and Khewat No. 16/4, whereas; the
respondent No. I sold his agricultural land bearing Khasras Nos.666, 623, 591, 554, 400,
662, 404, 666/645, 405, 668 and 402 situate in Mohal and Mouza Chashma Balch Tapa
Baleli, Tehsil and District Quetta measuring 81 rods 30 poles in favour of the respondents
Nos.2 and 3/defendants (vendees) against the consideration of Rs.40,00,000 on .3-3-
1997, which property accordingly stands transferred in favour of the vendees vide
mutation effected in the relevant Revenue Record. It was further averred in the plaint that
the appellant recently came to know about such sale transaction, therefore, he
Page No. 3 of 15
immediately and without loss of any time performed the requisite Talbs i.e. Talb-e-
Muawasibat and Talb-e-Ishhad in accordance with the requirements of law of pre-
emption but to no avail. It is further case of the appellant that the respondents/vendees are
strangers in the said Mohal who do not own any landed agricultural property in the afore
said Mohal except the one purchased by them as afore mentioned. It was prayed that
decree for possession through pre-emption of suit property mentioned hereinabove be
passed in his favour against the receipt of the above quoted amount of sale transaction,
with, the further prayer that the mutation of sale transaction attested in favour of the
vendees on 3-3-1997 may be declared as illegal on receipt of the pre-emption amount and
instead such mutation be directed to be entered in favour of the appellant.
3. It may be noted that initially the suit came up for hearing in the Court of Civil Judge-
III, Quetta and was registered as Civil Suit No.26 of 1997 but subsequently, vide order,
dated 7-7-1997 passed by the District Judge, Quetta the case file was transferred to the
learned Senior Civil Judge, Quetta on the ground that another suit for pre-emption in
respect of the subject-matter of the suit was also pending in the Court of Civil Judge-I,
Quetta. In the instant matter the respondents moved application for transfer of the case,
whereas; in the other suit similar application was filed and both the transfer applications
were disposed of by learned District Judge vide his common order, dated 7-7-1997
whereby both the suits were transferred to the file of learned Senior Civil Judge, Quetta
for disposal in accordance with law and thereupon the instant suit was registered as Civil
Suit No. 124 of 1997.
4. Respondents Nos.2 and 3 (vendees) filed their joint written statement on 3-5-1997 in
the trial Court wherein certain preliminary objections were taken besides contesting the
suit on merits. On merits it has been averred in the written statement that the vendees did
not purchase the suit-lands described in para. No.2 of the plaint rather out of these lands
only eight acres of the land was purchased by them vide sale agreement, dated 20-8-1996
against consideration of Rs.2,90,08,500 at the rate of Rs. 60 per sq. ft. being the actual
sale price of the, property at the relevant time. It was explained in the written statement
that on the same date another sale-deed was executed by the vendor in favour of the
vendees/respondents wherein the sale consideration of the land measuring eight acres was
shown by the respondent No.1 (vendor) as Rs.40,00,000 who, however; vide a separate
agreement acknowledged the receipt of the actual sale price of the transaction and the
vendees did not insist for the actual price of the land to be incorporated in the sale-deed.
Pursuant to the sale transaction as per averments contained in the written statement,
possession of the sold property was delivered to them by the vendor i.e. respondent No.1
and on coming into possession of such property they developed and levelled the property
by incurring several lacs of rupees who as per their plan of establishing a housing scheme
on such land constructed a building by incurring a huge investment. It was denied that the
land in question was sold on 3-3-1997 and according to the case of the vendees the
appellant/plaintiff was fully aware of the aforesaid sale transaction and the works carried
out by them on such land but he never raised any objection to the same and by his
conduct and waived his right, if any. It was also denied that the appellant has any right to
pre-empt the land on the ground mentioned in the plaint.. The vendees in their written
statement pointed out that the appellant and his other relatives have sold their own
properties in the same Mohal and Monza to various strangers and many other land
owners of the same Mohal have also sold their property to different persons and thus, the
appellant in such view of the matter also is not entitled to claim the alleged right of pre-
emption: It was specifically denied that the appellant made Talb-e-Mawasibat and Talb-e-
Ishhad in the exercise of his stated right. of pre-emption and moreover; it has been
averred in the written statement that the appellant has no locus standi to institute the suit
because he does not own any property contiguous or adjacent to the property in question
and further it was contended that present market value of the suit property is not less than
Rs.35,00,000 and that the appellant intends to exploit the situation and wants to black-
mail vendees because the actual sale price was not shown in the sale-deed. Respondent
No.1 vendor also filed his written statement in the trial Court wherein the suit has been
contested on factual and legal grounds, identical to the same as contained in the written
statement filed by the vendees/ defendants.
5. The appellant/plaintiff along with the suit filed an application under Order XXXIX,
rules 1 and 2, C.P.C. read with section 151, C.P.C. praying therein that the respondents be
Page No. 4 of 15
restrained from alienating, selling or changing the nature of the property till the disposal
of the suit who by their rejoinders to the application contested the grant of ad interim
relief prayed for by the appellant. The learned trial Court vide order, dated 4-4-1997
directed that status quo position in respect of the suit property to be maintained and
finally by its order, dated 9-6-1997 confirmed the status quo order earlier granted by it
and disposed of the application accordingly. The respondents being aggrieved of the ad
interim order finally passed by the trial Court on 9-6-1997 preferred Civil Miscellaneous
Appeal No. 13 of 1997 before this Court which was allowed by this Court vide order,
dated 16-6-1997 and the impugned order was set aside on the grounds mentioned therein.
The appellant being dissatisfied with the order passed by this Court on 16-6-1997 filed
civil petition for leave to appeal No. 100/Q of 1997 before the Honourable Supreme
Court and by consent such petition was converted into an appeal and the same was
disposed of by the Honourable Supreme Court in the following terms:--
"That the respondents may continue to execute the development work on the land
which respondents Nos.2 and 3 have purchased from respondent No.1 and which,
according to Mr. Shakil Ahmed, learned Advocate Supreme Court for respondent
No.3, comprises 32 rods at their own risk and costs subject to the result in the
pending suit, but should not create interest of third parties."
6. The learned trial Court framed the following issues out of the pleadings of the
parties:--
(1) Whether the suit of plaintiff is liable to be dismissed in view of L/O "C" "D" and "F"?
(2) Whether proper court-fee has not been affixed on the plaint?
(3) Whether defendant No.1 sold disputed land bearing Khasras Nos.666, 623, 591, 554,
400, 662, 404, 666/645, 405, 668, 402, situated Mohal Chashma Balch Mouza Balch
Tehsil and District Quetta measuring 41 acres 81 rods 30 poles to the defendants Nos.2
and 3 for consideration of Rs.40,00,000'?
(4) Whether plaintiff has performed Talbs as per law for pre-emption?
(5) Whether plaintiff is entitled for possession of disputed land through right of pre-
emption?
(6) Whether the plaintiff is entitled for relief claimed?
(7) Relief?
7. The appellant/plaintiff in support of his case examined five witnesses namely Fazalur
Rehman (P.W.1), Nabi Bakhsh, Halqa Patwari (P.W.2), Manzoor Ahmed (P.W.3), Syed
Ibrahim Shah (P.W.4) and Haji Sahib Jan (P.W.S). Whereas; the appellant appeared as his
own witness. Respondents/defendants did not produce any witness and one Muhammad
Tahir son of Haji Abdul Karim got recorded his statement as attorney for the respondents
Nos.2 and 3 (vendees), whereas; the respondent No. I vendor did not give statement
before the trial Court and finally the learned trial Court i.e. Senior Civil Judge, Quetta
vide judgment and decree, dated 3-1-1998 dismissed the suit of the appellant, impugned
before this Court in the instant appeal.
8. Issue No.1 i.e. whether the suit of the plaintiff is liable to be dismissed in view of L/O
"C" "D" and "F"? is based upon the preliminary objections raised in the written statement
filed by the respondents which are respectively reproduced hereunder:--
"Preliminary objection "C" that the suit is barred by the principles of acquiescence,
estoppel and waiver, therefore, the same is liable to be dismissed.
Preliminary objection "D" that the alleged claim of the plaintiff is violative of the
principles of Mohammaden Law, therefore, the suit filed by him is legally not competent,
as such liable to be dismissed.
Page No. 5 of 15
Preliminary objection "F" the verification is not in accordance with the provisions of
C.P.C., thus, the plaint being not properly verified is liable to be dismissed."
Issue No.1 comprises of the above mentioned preliminary objections and the learned trial
Court while disposing of Issue No.1 resolved the objection "C" in negative, whereas; in
respect of objection "D" it was observed that the same as pertains to the merits of the
case, therefore, to be disposed of along with the other issues struck on merits and it
appears from the impugned judgment that the same was resolved in affirmative and
whereas; objection "F" was decided in negative. The learned trial Court resolved Issue
No.2 pertaining to the court-fee in negative, Issue No.3 resolved in the terms that only
eight acres of suit-land was purchased against consideration amount of Rs.forty lacs, and
the Issues Nos.4 and 5 have been decided against the appellant/plaintiff as a consequence
whereof the Issue No.6 also decided in negative and the suit consequently has been
dismissed.
9. (P.W.1) Fazalur Rehman deposed about Talb-e-Mawasibat and Talb-e-Ishhad.

According to him the parties are known to him and stated that defendant No.2
(Muhammad Younus) is resident of Karachi, whereas; defendant No.3 (Sharaf-ud-Din) is
resident of Chaman. He further deposed that he has seen the suit property which is situate
at Chaman Road near to Air Port Police Station, whereas; the property owned by the
plaintiff is situate in Sheikhmanda, Mohal, adjacent to the suit property. He further stated
that the suit property is covered under Khasra No.400, whereas; the land owned by the
plaintiff is under Khasra No.401. Narrating about the transaction he stated that the suit
property was sold by the defendant No. 1, about 5/6 months back to the defendants Nos.2
and 3 (Muhammad Younus and Sharaf-ud-Din) and about such sale transaction the
plaintiff came to know about 10115 days back in Tehsil who thereupon; obtained copies
of the mutations and thus, narrating about the Talb-e-Mawasibat made by the plaintiff, the
witness stated that as the plaintiff carne to know about the sale transaction of the suit-land
declared/claimed that he has a right of pre-emption on the suit-land and thereafter
according to the witness they both visited the suit property who further stated that he,
Haji Nauroz (plaintiff) and Haji Hassan visited on to the suit property where plaintiff
claimed to be having his right of pre-emption. This witness deposing about the second
demand i.e. Talb-e-Ishhad stated that on the next day he along with Nauroz (plaintiff),
Ibrahim Shah (P.W.4), Haji Sahib Jan (P.W.5) and Manzoor Ahmed (P.W.3) visited
Rehman Builders Masjid Road where Haji Nauroz (plaintiff) stated to Mohsin that he is
ready to make payment of the amount against which they have purchased the disputed
property and with reference to such transaction Haji Nauroz (plaintiff) stated to Mohsin,
to convey the same to Sharaf-ud-Din and Muhammad Younis, whereupon; according to
the witness Mohsin replied not to go into litigation and that they are ready to make
payment of the amount as per plaintiff's demand. The witness describing the events stated
that Mohsin, however; stated that he would inform him within a week. The witness on
being cross-examined stated that he is not aware about the date, month and day of the
transaction, however the consideration amount of the sale transaction was transpired on
obtaining copy of the mutation. He further stated that at about 3/4 p.m. plaintiff had told
to him about the sale transaction and at that time Haji Arshad and Manzoor Ahmed were
present and till 5/6 p.m. they were present in the shop. In the cross-examination part of
his statement the witness stated that on the next day he and Nauroz (plaintiff) visited
Tehsil at about 10 or 10-30 a.m. and about 2/3 hours were spent at Tehsil and that before
obtaining the copy of the mutation the plaintiff had claimed right of pre-emption and at
such time Patwari, Qanungo and others were present but he does not remember their
names and according to him at about 3/4 p.m. they went on the disputed land. He also
stated that before going to Tehsil they went to the shop and thereafter visited the disputed
land and according to him, the land owned by the plaintiff is situate at a distance of 2/3
kilometers from the suit-land. He also stated that the plaintiff's land measuring about 1-
1/2 acres is contiguous to the suit-land and is under cultivation. The witness denied that
land covered under Khasra. No.401 comprises of a Nullah/Sailaba drain (Manda).
(P.W.2) Nabi Bakhsh produced the property Fard of the plaintiff as Exh.P.1. The witness
in the cross-examination disclosed that he has seen land covered under Khasra No.401
and admitted that water flows through Khasra No.401. He, however; denied that the
length of the land under Khasra No.401 runs into miles and on his own stated that the
same covers a sufficient length and further stated that the length of the watercourse of
Page No. 6 of 15
Khasra No.401, commences ahead from Western by-pass which comes to its end at a
distance from the agricultural college. Responding to the cross-questions of the
defendant's counsel, the witness stated that Mutation No.182 referred in Exh.P./1-A (as
per original record) pertains to Khasra No.401 and admitted that in the original record in
the relevant column "Paimana Haqiat-e-Aab" has not been mentioned while in Exh.P./1 in
the column of Paimana-e-Haqiat Aab 15 Shabana Roz has been mentioned and according
to the witness three Saya amounts to 15 Shabana Roz which has been incorporated in the
light of the original record. The witness further admitted that the note endorsed on
Exh.P./1 has not been mentioned as such in the original record i.e. Exh.P./1-A, who
further stated that 15 Shabana Roz water was previously used to be obtained from the
Karez which has now dried up.
(P.W.3) Manzoor Ahmed is the witness to the second demand i.e. Talb-e-Mawasibat. He
deposed that he does not know the vendees ' and is also not aware to whom the suit
property previously belonged to and stated that the plaintiff owns land in the same Mohal.
According to him about 4/5 months back it had come to knowledge that respondent No.1
(vendor) sold land to the respondents Nos.2 and 3 namely Muhammad Younis and
Sharafuddin. According to the witness Haji Nauroz had shown to him and to Ibrahim
Shah, Sahib Jan and Fazalur Rehman, the copy of the mutation who had stated that some
one has purchased land in their Mohal and the witness narrating the sequence of the facts
stated that the plaintiff had asked them to accompany him because he wanted to assert his
right of pre-emption and thereupon; they along with the plaintiff went to a office situate
at Masjid Road where one person namely Mohsin was present to whom the plaintiff
stated that he has a right of pre-emption on the suit-land purchased by him, to which said
Mohsin stated that he has not purchased rather Muhammad Younis and Sharafuddin
purchased the same and that Mohsin further stated that the vendees are not present there
and that in any case, if the plaintiff has any claim then he would inform him after talking
to the concerned. This witness in the cross-examination stated that the land owned by the
plaintiff is not under the cultivation and stated that the document of mutation was shown
to him at 10-00 a.m. He further disclosed that the land of the plaintiff is situate at a
distance of 3/4 kilometers from the suit property.
(P.W.4) Syed Ibrahim Shah is the witness to the subsequent demand i.e. Talb-e-
Mawasibat and according to him about six months back from today, he along with the
plaintiff Fazalur Rehman, Manzoor Ahmed and Sahib Jan went to Rehman Builders,
Masjid Road and met to a person namely Mohsin, where the plaintiff asked Mohsin to
convey to the concerned people on his behalf that he has the right of pre-emption on the
land purchased by them and to have their money/amount within a week otherwise the
plaintiff would approach to the Court, on this according to the witness, Mohsin stated
that if any settlement could be arrived apart from the legal proceedings to which the
plaintiff answered in negative. The witness also stated that the said Mohsin is the
Incharge of the respondents. In the cross-examination part of his statement, stated that
at about 11/12 noon they visited Mohsin and no mutation document was shown to him.
He also stated that Mohsin had himself' told that he was the Incharge of the vendees.
(P.W.5) Haji Sahib Jan is also the witness to the Talb-e-Mawasibat, who deposed that on
a day, he visited the shop of the plaintiff and to him the plaintiff stated that he had some
work with a person whose shop is located at Masjid Road whereupon; he, plaintiff and
two of his companions Ibrahim and Arbab Fazal went to the office situate at on first
floor Masjid Road and the plaintiff' to a person sitting in the office stated that the
property which he purchased is valuing of Rs.40,00,000 and further the plaintiff asked
to that person whether he is to make payment then and there or the same to be deposited
in the bank and on this according to the witness that person stated to settle/decide the
same with them so that both the parties to remain happy. The witness stated that
thereafter they left the office. Answering to the questions put by the defendant's counsel
the witness stated that about 5/6 acres of plaintiff's land is contiguous to the suit
property and in the same breath stated that he has no knowledge if any land of the
plaintiff is contiguous to the suit property or otherwise. He also stated that before going
to Masjid Road, the plaintiff had not talked about sale and purchase of the land.
Plaintiff Haji Nauroz Khan deposed that he owns lands in Baleli and Sheikh Manda and
according to him he used to visit Tehsil and thus, in the month of March, 1997 he was
Page No. 7 of 15
present in Tehsil when he came to know that the suit property has been sold and at that
time Fazalur Rehman (P.W.1) was also accompanying him. whereafter he asked for the
grant of copy of the 'mutation and when they were on their way from Tehsil, Haji
Hassan met him whereafter, according to the plaintiff he visited the suit property and
claimed his right of pre-emption thrice. The plaintiff further stated that on the next day
he along with Syed Ibrahim Shah, Sahib Jan, Fazalur Rehman and Sahibzada Manzoor
Ahmed visited the office of Al-Rehman Builders situate at Masjid Road where Mohsin
Ali was present, to whom the plaintiff stated that they have purchased the property and
as to whether he is to make payment in the office or the same to be deposited in his
account. Thereupon; according to the plaintiff Mohsin Ali stated, not to institute suit
and to have a deal with them. In the cross-examination part of his statement, plaintiff
admitted that in Mohal Balch and Sheikh Manda he has sold land to 40 persons. He also
admitted that he has sold lands which was jointly owned by him with his brothers and
similarly joint lands have been sold by his brothers to the extent of their shares. He
further admitted that he did not institute any suit of pre-emption in respect of the lands
sold by his brothers to the extent of their shares in the joint lands. The plaintiff
responding to the questions put to him by the defence counsel stated that he had filed a
suit for pre-emption in the year 1990 against a person but did not remember as to
against which persons he had filed such suit besides Mughul Company. He admitted
that Mark `A' annexed with the plaint is not contiguous to the suit-land but is situate at
a distance of 1-1/2 or 2 kilometers. Plaintiff further admitted that property covered
under Khasra No.401 is a Manda/Sailaba drain depth whereof ranges 10/12 feet but
denied that it is sullage water Nulla. Plaintiff admitted that the suit property was
purchased for Rs.2,90,00000.
10. As above doted the defendants did not produce any evidence nor respondent No.1
(vendor) recorded his statement before the trial Court, however; Muhammad Tahir as
attorney for the respondents Nos.2 and 3 (vendees) got recorded his statement before
trial Court, he produced Mark `D/1' Tatima of the suit property whereby eight acres of'
land was transferred by way of mutation in favour of the vendees on 15-8-1996.
According to the attorney subsequent to the purchase of land, the same was levelled and
developed besides the constructions raised thereon including the erection of the
boundary wall which entailed Lacs of rupees. He stated that the aforementioned
property was purchased against the sale consideration of Rs.2.908,500. According to
him no land or the plaintiff is adjacent to the suit properly, however; property under
Khasra No.401 comprises or a Manila length whereof according to the attorney is about
2/3 kilometers, whereas; its depth is 15/20 feet. The attorney further stated that the
disputed land was purchased for establishing a housing scheme and on account or the
works being carried out on the disputed land, the plaintiff came to know about the
transaction but he did not object to that and according to the attorney suit for pre-
emption has been instituted to black-mail; narrating the events he stated that 2-1/2 or 3
months back the plaintiff' had come to the site office along with Aurangzeb where the
respondent Sharafuddin was present and had demanded Rs.40,00,000 for withdrawal of
the suit and; had also offered that in case Sharafuddin does not want to pay the amount to
him, the same to be arranged to be given to him by the Karachi party (Muhammad
Younis-respondent No.2). He categorically stated that Mohsin has no concern with the
disputed property and the plaintiff also does not enjoy any right of pre-emption. The
attorney responding to the question put to him in the cross-examination stated that
respondent No.2 is resident of Karachi, whereas; the respondent No.3 is resident of
Chaman. He admitted that the vendees do not own any land except the disputed land. He
also denied that the plaintiff had made Talbs.
The learned trial Court after hearing the parties vide impugned judgment and decree,
dated 30-1-1998 dismissed the suit of the appellant, which is impugned in the instant
appeal.
11. We have heard the learned counsel for the parties at length. Mr. Muhammad Riaz
Ahmed, the learned counsel for the appellant contended that:--
(a) During the pendency of the suit before the trial Court, the respondents Nos.2 and 3
sold the suit property to a 3rd party in violation of the order of Honourable Supreme
Court dated 26-6-1997 passed in. Civil Petition for Leave to Appeal No. (100/Q of 1997)
Page No. 8 of 15
therefore, the appellant submitted an application under Order I, rule 10, C.P.C. for
impleading the 3rd party as defendants in the suit and simultaneously an application
under Article 163 of Qanun-e-Shahadat Order, 1984 was filed before the trial Court
praying that the plaintiff be allowed to take oath as contemplated under Article 163 of
Qanun-e-Shahadat Order, 1984 in respect of the 3rd party interest created in the suit
property and the respondents Nos-2 and 3 (Muhammad Younus and Sharafuddin) to rebut
the same likewise but these two applications, were summarily rejected by the trial Court
vide order dated 3-1-1998 contrary to the law; though it was obligatory for the trial Court
to have had issued notice of the 'application to the contesting defendants and thereafter to
have disposed of the applications in accordance with law and the rejection of application,
without observing the legal and judicial norms has caused miscarriage of justice to the
appellant which renders the impugned decree as unsustainable.
(b) Because one of the defendants was resident of Chaman and the other was residing at
Karachi (vendees) therefore, it was not practicable for the appellant to have had
personally made the required Talb (Talb-e-Ishhad) to them, so, such demand was made to
the agent and overall incharge of the suit-land of the vendees-defendants (the learned
counsel in support of his contention made reference to the title of the suit about the
addresses of the defendants (vendees) and the contents of power of attorney to such
effect) and; because the form and procedure of the Talbs being a technical one in its
nature, therefore, expressing the required intent on the part of the appellant in the manner
of Talb-e-Mawasibat and Talb-e-Ishhad were sufficient to meet with requirement of the
demand under Mohammaden Law. Reliance was placed on PLD 1990 Pesh. 181.
(c) The appellant through evidence, in the light of above mentioned position proved his
case, which could not be discredited or impeached, therefore, the suit was liable to be
decreed and the impugned decree as such to be reversed, also for the reason that the
superior right to pre-empt the land was proved by the appellant. He placed reliance on
1996 SCMR 856.
12. Controverting the above contentions the learned counsel for the respondents
submitted that:--
(a) in response to the applications submitted by the appellant under Order I, rule 10,
C.P.C. and under Article 163 of the Qanun-e-Shahadat Order, the parties' counsel were
heard by the Court which were, for plausible reasons rejected by the Court. Applications
were submitted at the stage without any basis when the case was ripe for judgment, which
were duly considered and finally rejected on valid grounds, inasmuch as; the grant of
application would have been futile in the circumstances of the case.
(b) no valid cause of action was shown because either of the necessary requirements to
claim pre-emption right was lacking i. e.
(i) the appellant is not a co-sharer in the property.
(ii) is not a participator in immunities and appendages, such as right of way or right to
discharge water.
(iii) is not an owner of adjoining immovable property;
thus, the suit only on such score was liable to dismissal, and the vendees being strangers
is not a ground recognized under the Mohammaden Law to claim right of pre-emption.
(c) The landed property of the appellant is situate at a distance of 1-1/2 to 2 kilometers
whereas; the other property of the appellant situate at some distance from the suit
property is a `Nullah' through and through which cannot be termed as `land' nor is
adjacent to suit property.
(d) For both the demands presence of two witnesses, is essential; the 2nd witness of the
1st stated `Talb' was not examined and the 2nd-Talb was never made to the
vendees/defendants. The evidence of stated demands are conflicting, and; white making
the stated Talb-e-Mawasibat reference to the 1st Talb was not made which is mandatory
Page No. 9 of 15
under the Mohammaden Law.
(e) The mode of performance of Talbs must be strictly observed, non-compliance whereof
extinguishes right of pre-emption.
In support of his above contentions the learned counsel placed reliance on 1987 CLC
2006, 1973 SCMR 252 and PLD 1995 Quetta 1 & 29.
13. We, have considered the contentions put forth on behalf of the parties and perused the
entire record of the case which has been read over by the appellant's counsel. It is the case
or the appellant/plaintiff that he is the owner of landed property under Khewat No. 16/4
situate in Mohal Monza Chashma Baleli, Tappa Baleli, Tehsil Quetta, whereas; the
respondent No.1 also he'.1 agricultural land bearing Khasras Nos.623, 666, 591, 554,
400, 66_, 404, 666/645, 405, 608 and 402 in the same Mohal measuring 81 Pods and 30
poles which has been sold by him to' the respondents Nos.2 and 3 (vendees)/defendants
against the consideration amount of Rs.40,00,000 on 3-3-1997 which stands transferred
by way of mutation in favour of the said respondents in the Revenue Record. It is further
the case of the appellant that no sooner he came to about the above mentioned sale
transaction effected through mutation attested by the Revenue Officer, he immediately
performed the requisite Talbs (Talb-e-Mawasibat and Talb-e-Ishhad) but with no result. It
was also averred in the plaint that the respondents/vendees are strangers in the area, as
such the appellant has the preferential right to pre-empt the suit-land. Respondents Nos.2
and 3 in their written statement besides certain preliminary objections, contested the suit
on merits, contending therein that the Talbs were never performed by the appellant nor
any right of pre-emption was available to the plaintiff. It was also explained in the written
statement that a part of the suit property was purchased against consideration of
Rs.2,90,08,500 at the rate of Rs.60 per sq.ft. as per sale agreement dated 20-8-1996
which was the actual sale price of the land in question but in the sale-deed the
consideration amount of the transaction was shown to be Rs.40,00,000 however; by a
separate agreement, the actual sale price has been acknowledged to have been received
by the vender (respondent No. 1). It was further averred that at the time of execution of
sale-deed possession of the land sold to the vendees was delivered, who thereafter
levelled and developed the land and incurred Lacs of Rupees for the purpose of housing
scheme. It was denied that the land was sold on 3-3-1997, and that the plaintiff had the
knowledge of the transaction since it was struck between the vendor and the vendees but
he did not object to the same. Plaintiff's ownership of any adjacent land was also
disputed. The vender-defendant also filed his written statement almost on the same lines.
14. Adverting to the contention of the learned counsel for the appellant that application
under Order I, rule 10, C.P.C. and application under Article 163 of the Qanun-e-Shahadat
Order, 1984 both dated 3-1-1998 were rejected by the trial Court without any legal
justification and in summary manner, it may be noted that after close of the parties'
evidence arguments were heard by the trial Court and the case was fixed on 3-1-1998 for
judgment; on which date both the above mentioned applications were filed. Order sheet
of even date reveals that the parties' counsel were present when the applications were
heard by the trial Court. Application under Order I, rule 10, C.P.C. was submitted on the
ground that the vendees/defendants during the pendency of the suit created 3rd parties
interest in the suit-land in violation of the order of Honourable Supreme Court, dated 26-
6-1997 which as such are required to be impleaded in the suit as defendants, names
whereof were disclosed A in the application. Trial Court rejected the application on the
ground that no supporting document was attached with the application and it appears that
the appellant wanted to protract the proceedings. Admittedly the contents of the
application do not disclose that as to when or by which process or against what
consideration the stated 3rd party interest was created and even during the arguments of
the instant appeal no such indication was made by the appellant's counsel and; therefore,
the learned trial Court was justified in rejecting the application, moreover; the application
filed under Article 163 wherein it was prayed that in respect of 3rd party interest oath
may be administered to the parties; sufficiently indicate that the plaintiff was not having
any positive basis to prima facie indicate that 3rd party interest was created in the suit
property. The application under Article 163 of the Qanun-e-Shahadat Order, containing
the above mentioned facts was rejected by the trial Court on the ground that both the
parties completed their evidence and the case was fixed for final decision on the same
Page No. 10 of 15
date, consequent upon conclusion of arguments.
Evidently the application under Article 163 of' the Qanun-e-Shahadat Order, 1984 was
not submitted in support of the plaintiffs' claim as envisaged under the provisions of the
Article 163 which primarily are meant in respect of the claim as made in the suit and not
to be resorted to in respect of any other fact or event relatable to the subject-matter of the
suit, thus, the application being not related to the claim of the plaintiff was not required to
be proceeded with. The trial Court no doubt did not reject the application on the above
mentioned ground, yet the application even if be competent under Article 163, was
rejected on valid ground. 1987 CLC 2006 ref.
15. Reverting to the contention of the respondents' counsel with reference to Issue No.1
comprising of preliminary objection `D' taken in written statements of the respondents
and disposed of by the trial Court along with the issues on merits, it may be noted that the
plaintiff based his claim of pre-emption in the plaint against the land owned by him under
Khatuni and Khewat No. 16/4 situated in the Mohal where the land in dispute is located
as well. Under Mohammedan Law only the following mentioned classes of persons and
no others are entitled to claim pre-emption namely:--
(1) A co-sharer in the property.
(2) A participator in immunities and appendages, such as a right of way or a right to

discharge water; and
(3) owners of adjoining immovable property.
The 1st of the above mentioned classes excludes the second class and the later excludes
the 3rd one.
16. Plain reading of the contents of plaint reveal that the appellant claimed the right of
pre-emption on the basis of the 3rd class mentioned above, to be the owner of adjoining
land under Khatuni and Khewat No. 16/4 but no document of title or Revenue Record to
that effect has been produced in evidence by the appellant and in this behalf oral evidence
of the plaintiff is available on record which suggest that in the same Mohal plaintiff owns
agricultural lands i.e. at Baleli and Sheikmanda but such position has not been challenged
by the defendants, therefore, the plaintiff being owner of lands in same Mohal shall be
deemed to have been admitted by the defendants/respondents.
Apart from the ownership of immovable property it was obligatory for the appellant to
prove that such lands are adjacent to the disputed property in order to establish a valid
right of pre-emption to be available to the plaintiff. In such behalf according to P.W.3
Manzoor Ahmed the land of the plaintiff is situate at a distance of 3/4 kilometers from the
suit-land, whereas; P.W.5 Haji Sahib Jan stated that he has no knowledge if the plaintiff's
land is adjacent to the suit property or not, while the plaintiff did not depose about such a
fact, as such; in the light of the above mentioned evidence it can be safely concluded that
the plaintiff's land on the basis of which right of pre-emption has been claimed is not
adjacent to the suit property.
It is pertinent to note that the plaintiff has claimed right of pre-emption against the entire
property vesting in the respondent No.1 (Raz Muhammad vendor) whereas; the
defendants in their pleadings asserted that only a part of the suit-land measuring eight
acres was sold to the vendees/defendants in respect whereof the relevant mutation has
been produced by the defendants (vendees) in their evidence, which is not disputed by the
plaintiff.
17. Contrary to the pleadings of the plaintiff in order to establish his right of pre-emption
brought on record Exh.P.A. i.e. produced by P.W.2 (Patwari) in respect of Khasra No.401
of Mohal and Mouza Chashma Baleli, Tappa, Baleli for the year 1979-80 indicating the
same to be Shamilat-e-Mohal i.e. sharers as per ownership ratio (Hasb-a-Hiles Paimana
Haqiat) and in the relevant column about nature of property as per Exh.P.A. the words
"Ghair Mumkin Lohra" have been incorporated meaning thereby that the property under
Khasra No.401 comprises of Nullah/Sailaba drain. Exh.P.A. contains a note endorsed
Page No. 11 of 15
thereon to the effect that the plaintiff owns 3-3/5 "Saaia Aab" in Khasra No.401 out of the
total shares of 63 Saaia". The witness with reference to the original record Exh.P.A./1
stated that 15 "Shabana Roz" has been incorporated equal to three `Saia' who however;
admitted that note has not been G entered in Exh.P.A./1. Be that as it may, figures and
calculation of the shares are not material. Exh.P.1 does not indicate that the plaintiff owns
share in property under Khasra No.401 because the relevant record showing the names of
`Shamilat owners' in the said Khasra number was not produced. Secondly it is not proved
that such property is adjacent to the disputed land and thirdly Exh.P/1 reveals that such
property comprises of `Ghair Mumkin Lohra'. On the basis of property covered under
Khasra No.401 stated to be adjacent to the suit property right of pre-emption cannot be
claimed for the following reasons:--
(i) Suit was not based on such claim of ownership.
(ii) Not proved that the property is adjacent to the disputed land.
(iii) Exh.P.A. does not indicate that the plaintiff is a co-owner (in Shamilat property under
Khasra No.401).
(iv) Property under Khasra No.401 (as per Exh.P.A.) is a Sailaba drain and no right of
pre-emption can be claimed against such nature of property, in absence of right of `Shafi-
i-Khalit' lacking in the instant case. 1979 SCMR 360 ref.
As above discussed no land owned by the appellant is located adjacent to the disputed
land, therefore, the claim for right of pre- emption was not available to the plaintiff which
has been rightly so held by the trial Court.
18. It May be pointed that the learned counsel for the appellant did not dispute the
findings of the trial Court on Issue No.3 and thus, it is suffice to observe on the basis of
evidence available on record that only a part of suit property measuring eight acres was
purchased by the vendees/defendants. This issue also pertained to the determination of
the sale consideration amount of the property in question which as per findings of the
trial Court was purchased by the respondents Nos.2 and 3 against the consideration
amount of Rs. Forty Lacs. Such findings of the trial Court has not be challenged by either
of the respondents by filing cross-objections or otherwise therefore, we in absence of any
challenge, feel it not proper to dilate upon such question.
19. It is an admitted position that Talb-e-Ishhad was not made to either of the vendees or
to the vendor (respondent No. 1) and in this behalf the learned counsel for the appellant
contended that because the vendees respectively are residents of Karachi and Chaman
therefore, it was not possible/practicable for the appellant to have made Talb-e-Ishhad
promptly to them personally hence the same was made to the Incharge of the disputed
property of the vendees namely Mohsin Ali. So far as residence/place of abode of the
vendees is concerned, as pointed out by the appellant's counsel there exists no dispute
between the parties nor the learned counsel for the respondent during course of arguments
contested such factual position. In order to assert the claim of pre-emption, it is always
obligatory for a pre-emptor to prefer the required Talbs in accordance with the norms of
Mohammaden Law, to which no departure is permissible. In so far as the subsequent Talb
is concerned i.e. Talb Ishhad should be made to the vendees or to the vendor but in the
instant matter such demand has not been made to either of them. In any case if the
vendees at the relevant time were not available at Quetta such demand as per
Mohammaden Law could have been validly made to the vendor but the appellant did not
opt for either of the course permissible but preferred the 2nd Talb to one Mohsin Ali of
Rehman Builders Masjid Road; such a demand in absence of evidence to the effect that
Mohsin Ali had the authority as that of the vendees, is inconsequential and cannot be
equated to that of demand having been made to the vendees. The burden was on the
appellant to have proved that Talb-e-Ishhad was competently and validly made. It has not
been disclosed in the plaint that Talb-e-Ishhad was made to the authorized agent of the
vendees and during the course of evidence produced by the plaintiff attempt was made to
suggest that said Mohsin Ali was the over-all incharge of the properties of vendees.
Assuming that Mohsin Ali was the incharge of the properties of the vendees/defendants,
would not be enough to presume that such charge included all the competence and
Page No. 12 of 15
authority vested in vendees as owners of disputed property. Attorney for the vendees-
defendants categorically stated that Mohsin Ali has no concern or connection with the
property in question and such part of the deposition has not been challenged in the cross-
examination by the appellant. Talbe-Ishhad not made to a person to whom it is required to
be made does M not exist and carries no sanctity under the Mohammaden Law. The
manner in which the prescribed demands are to be made must be strictlyobserved and any
deviation by introducing one's own mode of preferring Talb-e-Ishhad to a stranger is not
recognized under the law of pre-emption. As above discussed there is no evidence
available on record to suggest that subsequent Talb was made to the competent person,
thus, for such reason as well, the appellant failed to discharge the onus of Issue No.4.
20. Reverting to the `Talbs' as it emerges from the plaintiff's evidence has been noted
hereinabove, in respect whereof the appellant's counsel contended that because of the
technical nature of the `Talbs' expressing the required intent on the part of pre-emptor in
the form of Talb-e-Mawasibat and Talb-e-Ishhad is sufficient to meet the requirements of
such demands and in support of his contention reliance has been placed on PLD 1990
Pesh. 181. The Honourable Peshawar High Court seized with the matter in a pre-emption
case and attending to the question of Talb-e-Mawasibat and Talb-e-Ishhad observed that it
is not material as to in what words or manner the claim is preferred as it will be sufficient
if they imply a claim as there is no specific form or manner in which the intention to
exercise the right of pre-emption is to manifested.
Ratio of the above quoted dictum of Honourable Court is that the intention of pre-emptor
in preferring the claim must be manifest about the exercise of such right irrespective of
the words or manner in which it is made; and therefore, the intention of pre-emptor in the
P exercise of his right of pre-emption in preferring the claim by making the demands
must be manifest, i.e. clear, unambiguous and consistent. Intention to be manifest used in
the above referred case-law is not without significance and is relatable to the words or the
manner in which the right of pre-emption is exercised by a pre-emptor.
In the instant case the use of particular words or the manner in which the demands are
stated to have been made is not in dispute rather without prejudice to the competency of
demand made to one Mohsin Ali, it was contended that the plaintiff failed to discharge
the onus successfully in preferring the Talbs. The learned counsel for the respondents
contended that the second witness Haji Hassan to the initial demand i.e. Talb-e-
Mawasibat was not produced, as such; the same cannot equate with a valid demand. It
may be noted that so far as Talb-e-Mawasibat, is concerned, all that required is that a pre-
emptor, on acquiring knowledge of sale of immovable property to which right of pre-
emption is available to him, to immediately assert his right of pre-emption and for the
exercise of such right, presence of two witnesses is not essential, hence, the contention of
the respondent's counsel as above mentioned is of no substance and thereafter with least
practicable delay the pre-emptor has to assert the second demand i.e. Talb-e-Ishhad either
in the presence of the buyer or the seller in presence of at least two witnesses; which
should be in express terms so as to be manifest of his intention without any ambiguity.
Thus, the condition precedent for the Q exercise of right of pre-emption i.e. performance
of Talb-e-Muwasibat and Talb-e-Ishhad must be strictly observed supported with clear
proof thereof. 1973 SCMR 252 and PLD 1995 Quetta 1 ref.
21. According to P.W.1 Fazalur Rehman the plaintiff gained knowledge about the sale of
disputed land in Tehsil when he was also present whereupon; the plaintiff asserted his
right of pre-emption and thereafter he along with the plaintiff and one Haji Hassan visited
the disputed property where also the plaintiff asserted his right of pre-emption, and;
according to the plaintiff in March, 1997 he along-with P.W.1 had gone to Tehsil where
Patwari told to him about the sale of disputed land and thereafter he and P.W.1 left the
Tehsil and were on their way when Haji Hassan met him and they all visited the disputed
property where he thrice expressed his intention to exercise his right of pre-emption. Bare
reading of deposition of P.W.1 and the plaintiff, reveals that they both contradicted each
other about the place where such right was exercised. According to P.W.1 the plaintiff
exercised his right R of pre-emption initially. in Tehsil upon acquiring knowledge of the
sale transaction and thereafter the same was repeated on the land in dispute, whereas;
according to the plaintiff such right was exercised thrice by him on the land in question
where he had gone along with P.W.7 and one Haji Hassan (not produced).
Page No. 13 of 15
P.W.1 (Fazal-ur-Rehman), P.W.3 (Manzoor Ahmed) P.W.4 (Syed Ibrahim Shah), P.W.5
(Haji Sahib Jan) and the plaintiff himself have deposed about the performance of Talb-e-
Ishhad. According to P.W.3 about 4/5 months back he came to know that Raz Muhammad
(vendor) has sold land to Muhammad Younus and Sharafuddin (vendees) when Haji
Nauroz (plaintiff) showed the mutation to him, Ibrahim Shah, Sahib Jan and Fazal-ur-
Rehman who stated to them that some one has purchased land in his Mohal and therefore,
we too accompany him because he wanted to prefer his claim of pre-emption and
thereupon; they along with the plaintiff went to an office at Masjid Road, where one
Mohsin was present, to whom the plaintiff stated that he (Mohsin) has purchased the suit
property and that the plaintiff has a right of pre-emption on such land but Mohsin denied
to have purchased the land rather stated that the same has been purchased by Younus and
Sharafuddin. According to the witness Mohsin had further told that the vendees are not
present there and that in any case if he (plaintiff) has any claim, he (Mohsin) would talk
to the concerned and will inform him. According to P.W.1 Fazalur Rehman on the next
day after the demand of Talb-e-Muwasibat he along with the plaintiff, Ibrahim Shah, Haji
Sahib and Manzoor visited the office of Rehman Builders Masjid Road, Quetta.
Describing about the demand of Talb-e-Ishhad P.W.1 deposed that the plaintiff stated to
Mohsin that he is ready to make payment of the price of land against which it was
purchased by them and such offer he too communicate to Muhammad Younus and
Sharfuddin, to which Mohsin stated not to go into litigation and that they would meet
their demand of money, he (Mohsin) however; further stated that he will inform within a
week. In substance so far as the claim preferred by the plaintiff as peril, deposition of
these two witnesses is concerned, is conflicting on material S points. P.W.4 narrating
about the Talb-e-Ishhad deposed that the plaintiff told to Mohsin to inform the concerned
on his behalf that he has a claim of pre-emption on the purchased land, who to receive
price of the land within a week from him otherwise he would resort to legal action and
according to P.W.5 Haji Sahib Jan, the plaintiff stated to the person present in the office
that the land purchased by him is valuing Rs.forty Lacs payment whereof he is ready to
make on the spot or to be deposited in the bank. Thereupon according to the witness, the
said person stated, to avoid litigation and to have a deal with them. Deposition of the
plaintiff is in line with that of P.W.5 Haji Sahib Jan except to the extent that P.W.5 with
reference to the plaintiff's demand also mentioned the value of property.
Admittedly the second demand i.e. Talb-e-Ishhad was not made immediately after the 1st
demand and on the next day the later demand T was made and for such delay no
explanation has been given, the delay so caused in making Talb-e-Muwasibat is fatal to
the right of pre-emption. It is evident that the day on which the plaintiff on having come
to know about the sale transaction had obtained the copy of mutation in question and thus
was aware about name of the vendees and the particulars of their addresses and such fact
is also evident from the deposition of P.W.3 but still the plaintiff chose to prefer the claim
of pre-emption to a 3rd person namely Mohsin. No explanation nor any reason has been
given by the plaintiff as to why he did not prefer his claim to the vendees and in any case,
if it was not practicable for him to assert the claim directly to the vendees, as argued
before us, it could have been made to the vendor in case of non-availability of the
vendees or that if it was not practicable to lodge the claim of pre-emption with least delay
but the permissible course was not adopted and such legal aspect has already been dealt
hereinabove. The version of plaintiff's witnesses is conflicting and inconsisting in respect
of the demand of Talb-e-Ishhad as well. According to P.W.3 Manzoor Ahmed the plaintiff
before going to Rehman Builder's office had shown to him and to Ibrahim Shah, Sahib
Jan and Fazalur Rehman, the mutation in question and further told that some one has
purchased land in his Mohal, whereas; P.W.4, P.W.5 and the plaintiff did not say a word
about such stated fact however; P.W.4 Ibrahim Shah in his cross-examination stated that
on the same day he was told by the plaintiff and thereupon they visited the office of
Rehman Builders. The learned trial Court in its judgment appraised and assessed the
entire evidence on record in true perspective and for valid reasons discarded the plaintiff's
evidence.
22. Yet an additional reason which affects adversely, the validity of demands was not
taken notice of by the trial Court is that the witnesses of the plaintiff and the plaintiff
himself did not mention that while asserting the 2nd demand reference of the earlier
Page No. 14 of 15
claim of pre-emption was made and non-observance of such a prescribed condition is
fatal to the claimed right of pre-emption and therefore, due to failure to make Talbs in the
prescribed manner would extinct the right of pre-emption, which are required to be
observed strictly. 1973 SCMR 252, PLD 1995 Quetta 1 and 29 ref.
In the light of above discussion and reasons the contentions raised by the learned counsel
for the appellant are without any force and the case-law relied upon by him are of no help
to the proposition canvassed before us, as the plaintiff/ appellant failed to discharge the
onus of Issues Nos.4 and 5.
For the foregoing reasons we, do not find any merit in the appeal, accordingly the same is
dismissed. The parties are left to bear their own costs.
S.A.K./91/Q Appeal dismissed.
Page No. 15 of 15
2006 C L C 334
[Lahore]
Before Muhammad Muzammal Khan, J
HASNAIN AHMED SHAH----Petitioner
Versus
IJAZ AHMED SHAH and another----Respondents
Civil Revision No.2172 of 2005, decided on 20th October, 2005.
(a) Civil Procedure Code (V of 1908)----
---O. XXIII, R.3---Qanun-e-Shahadat (10 of 1984), Arts. 163 & 129---Specific Relief Act
(I of 1877), S.12---Suit for specific performance of oral agreement to sell---Offer of
plaintiff to decide matter on statement on oath by the defendants---Plaintiff had not
denied his offer of decision of his suit on the basis of statement by the defendants which
was also in, line with requirement in his two earlier applications under Article 163 of
Qanun-e-Shahadat, 1984---Plaintiff did not refute his own statement before Trial Court
nor he moved application resiling his offer instead he accepted the mode of statement by
defendants and signed defendant's, statement in presence of his counsel---Order sheet was
signed by some other Advocate just for identification purposes---Plaintiff, having done all
this on losing the case, could not be permitted to turn back to say that statement of
defendants was not recorded on oath of Holy Qur'an---Presumption of correctness was
always attached to judicial proceedings---Plaintiff's contention that statement of
defendants should have been recorded on oath of Holy Qur'an was repelled in
circumstances.
(b) Civil Procedure Code (V of 1908)----
-------O. XXIII, R.3---Qanun-e-Shahadat (10 of 1984), Art.163---Specific Relief Act (I of

1877), S.12---Suit for specific performance of oral agreement to sell---Statement by
defendants on oath as per offer by the plaintiff and dismissal of suit on basis thereof---
Question was as to whether procedure adopted by Trial Court was not covered by O.
XXIII, Rule 3, C.P.C.---Plaintiff in absence of any documentary proof out of his own
free-will called upon defendants for making statement on oath of.' Holy Qur'an before
Court that if the defendants stated that there was no agreement between the parties, his
suit be dismissed---Such offer was not accepted by the defendants, but plaintiff's offer to
make statement without oath on Holy Qur'an was accepted by the defendants---Such
factual aspect made both the Courts below felt satisfied about genuineness of the
compromise between the parties and procedure adopted by Trial Court was in accordance
with O.XXIII, R.3, C.P.C.---No illegality or irregularity having been pointed out, revision
petition was without merit and was dismissed by High Court.
Madan Mohan Gargh v. Murcia Lal and others AIR 1928 All. 497 and Muhammad Ijaz
and 3 others v. M. Khurshid Malik and 4 others 1986 CLC 2270 ref.
Muhammad Zaman Qureshi for Petitioner.
ORDER
MUHAMMAD MUZAMMAL KHAN, J.--- Instant civil revision assailed the

judgments/decrees, dated 4-10-2004 and 29-1-2005 passed by the learned Civil Judge and
the learned Additional District Judge, Samundari (Faisalabad) dismissing the petitioner's
suit as well as appeal, respectively.
2. Succinctly, relevant facts are that the petitioner filed a suit for specific performance of
an asserted oral agreement to sell whereby 7 Kanals of land was allegedly agreed to be
sold by respondent No.1, his brother, for an amount of Rs.1,80,000. The petitioner
Page No. 1 of 3
pleaded that respondent No.1 had received an amount of Rs.55,000 as earnest money and
promised to get the mutation of the suit-land sanctioned in his favour from the Revenue
Officer on the next day but he did not appear before the Revenue Officer, in spite of the
fact that the petitioner had been willing/ready to perform his part of contract of payment
of balance sale price of Rs.1,25,000.
3. The respondents being defendants in the suit contested the same by filing their
respective written statements. Controversial pleadings of the parties necessitated framing
of issues and recording of evidence. The petitioner initially on 25-11-2002 filed an
application under Article 163 of the Qanun-e-Shahadat Order, 1984 requiring his brother,
respondent No.1 to give an oath on the Holy Qur'an that bargain as asserted in the plaint
was not struck and if he gives such oath, his suit may be dismissed. Alike application was
repeated by the petitioner on 5-6-2003 and respondent No.1 each time refused to give the
oath required by the petitioner. Thereafter on 25-9-2004 the petitioner made a statement
before the trial Court offering that if respondent No.1 states before the Court that bargain
of sale was not struck between the parties, his suit may be dismissed. In response to
statement by the petitioner, respondent No.1 appeared before the trial Court on 4-10-2004
and stated that suit by the petitioner is false and claim of respondent No.2 is correct. The
learned trial Judge who was seized of the matter, acting on statements of the parties
dismissed the suit of the petitioner vide his judgment/decree, dated 4-10-2004.
4. The petitioner aggrieved of the decision of the trial Court, dated 4-4-2004 filed an
appeal before the learned Additional District Judge, but remained unsuccessful as the
same was dismissed through the appellate judgment/decree, dated 29-1-2005. He has now
filed the instant revision petition for adjudgment of concurrent judgments/decrees of the
two Courts below.
5. The learned counsel for the petitioner submitted that the trial Court after rejection of
two applications by the petitioner under Article 163 of Qanun-e-Shahadat Order, 1984
had no occasion to have resort to the same exercise purpose especially when the suit was
already fixed for recording of evidence. According to him, controversy between the
parties should have been resolved on merit, instead of its decision on statements of the
parties. It was further submitted that the suit was being adjourned awaiting decision by
the Appellate Court and the same being not fixed for hearing trial Court had no
jurisdiction to record statements of the parties. It was further emphasized that the trial
Court acted in vacuum in not recording the offer/acceptance of the parties about the
decision of the suit and that, statement of respondent No.1 was to be recorded on oath of
the Holy Qur'an but dismissal of suit without such course being adopted, was not lawful.
The learned counsel for the petitioner further emphasized that the procedure adopted by
the trial Court for decision of the suit was not covered by Order XXIII, rule 3, C.P.C., or
by any other provision of law, hence, the impugned judgments/decrees deserved reversal.
6. I have minutely considered the arguments of the learned counsel for the petitioner and
have examined the record appended herewith. The petitioner had not denied his offer
dated 25-9-2004 of decision of his suit on the basis of statement by respondent No.1
which was also in line with his requirement in his two earlier applications under Article
163 of the Qanun-e-Shahadat Order, 1984. The petitioner also did not refute before any of
the Courts below that his statement dated 25-9-2004 was not correctly recorded. At the
time of recording of statement of respondent A No.1 on 3-10-2004 after about 8/9 days,
the petitioner along with his counsel was present in the Court and he signed the statement
of respondent No.1/order of the trial Court on the margin but did not object to the manner
of recording of statement of his brother (respondent No.1). The petitioner, thereafter filed
an appeal before the learned Additional District Judge and again did not dispute his
statement, as it stood and his only objection was that he had required the respondent No.1
to make the statement on oath of the Holy Qur'an. Now the petitioner having not reacted
before the trial Court on 25-9-2004, the day of his own statement, slept for all 8/9 days
and did not move application resiling or refuting his offer and then again accepting mode
of statement by respondent No.1 on 4-10-2004 when his counsel was also present in
Court but did not raise any objection. After all this, he cannot be permitted to turn back to
say that statement of respondent No.1 was not recorded on oath of the Holy Qur'an or
getting offer/acceptance of parties for decision and that too, after loosing the case. Under
law B presumption of correctness/regularity is attached to judicial proceedings/ orders,
Page No. 2 of 3
recorded/undertaken in routine/due course, hence, in view of the above noted conduct of
the petitioner of remaining silent on each occasion, I am not ready to accept his
afterthought defence of not making the statement on the Holy Qur'an. The petitioner has
admitted even before this Court, his signatures on the margin of both the interim orders of
the trial Court dated 25-9-2004 and 4-10-2004 in presence of which it is immaterial that
beneath his signatures, some other Advocate signed who was not his counsel Such
signatures are normally obtained for identification purposes, hence, in view of the
admission of the petitioner of his signatures it is immaterial that his counsel did not sign
on the order-sheet dated 25-9-2004.
7. Stance of the petitioner that the procedure adopted by the trial Court is not covered by
rule 3 of Order XXIII, C.P.C. has also no worth in it as the petitioner out of is own free
will/volition called upon the respondent No.1 to make the statement before the Court that
if there was no agreement between the parties, his suit be dismissed. Decision on the
basis thereof, was an adjustment of the suit through a lawful agreement/ compromise,
covered by above referred provision of Civil Procedure Code. Reference in this behalf
can additionally be made to the judgments in the cases of Madan Mohan Gargh v. Munna
Lal and others AIR 1928 Allahabad 497, and Muhammad Ijaz and 3 others v. M.
Khurshid Malik and 4 others 1986 CLC 2270.
8. Under Order XXIII, rule 3, C.P.C., Courts have to satisfy their judicial conscience
about lawfulness of compromise inter parties. The petitioner in view of his claim being
based on an oral agreement to sell, on account of absence of any documentary proof in
form of agreement or receipt etc. had been persistently calling upon the respondent No.1
to admit or deny his narrations in the plaint. Earlier calls through written applications for
making statement on oath of the Holy Qur'an were not accepted by respondent No.1 and
for the third time; call by the petitioner c to make statement without oath on the Holy
Qur'an appears to be factually correct because after two denials by respondent No.1 there
was no occasion to repeat the same offer for the third time. In view of this factual aspect,
both the Courts felt satisfied about the genuineness of compromise between the parties,
hence, rightly acted on it to dismiss the suit of the petitioner. Even before this Court no
argument about lawfulness or otherwise of this arrangement inter parties was addressed.
9. For the reasons noted above, none of the Courts below committed any
illegality/irregularity amenable to revisional jurisdiction of this Court and the impugned
judgment/decrees are not tainted with any legal defect, hence, this revision petition have
no merit in it, is dismissed in limine.
F.M./H-94/L Petition dismissed.
Page No. 3 of 3
2005 C L C 1441
[Peshawar]
Before Salim Khan, J
MUQADAR SHAH and others---Petitioners
Versus
MUDAM GUL---Respondent
Civil Revision No.466 of 2000, decided on 14th June, 2005.
(a) Oaths Act (X of 1873)---
----Ss. 5, 7, 8, 9 & 10---Qanun-e-Shahadat (10 of 1984), Art.163---Oath under Art. 163 of

Qanun-e-Shahadat, 1984 was different in nature from Oath under the Provisions of Oaths
Act, 1873; in the first case, plaintiff taking oath in favour of his claim, would submit an
application that defendant could take oath in support of his plea and the case would be
decided on completion of proceedings, while in the case of oath under Oaths Act, 1873, a
party could offer oath to other party or its witness and could bind himself by taking of
such oath---Decision on the basis of oath was an established mode of decision of cases
Generally, a party could not resile from the offer of oath, when the oath, as per offer, had
been administered---Court in such a case, had no alternative, but to decide case in
accordance with the effect of oath---Such oath, however, was to be offered with due
diligence and was to be accepted after due consideration---Offer would be made to the
opposite party after considering its effect and the opposite party could either accept or
reject the offer after considering its consequences---Parties in such circumstances, were
well-composed and not overcome by spontaneous emotions---Party offering Oath must
be mentally calm and not under the influence of emotions and must be in a position to
clearly know that he would lose his right, if any, if the oath was taken by opposite party
People of villages, when not sufficiently educated and properly experienced, offered oath
during heated discussions, only to oppose the stance of opposite party and to show that
opposite party was telling a lie.
1999 SCMR 2702; 1999 CLC 1685; 1998 SCMR 816; PLD 2002 SC 310; PLD 1984
Pesh. 121; 1999 MLD 389; PLD 1990 SC 841; PLD 2002 SC 655; PLD 1993 Pesh. 72;
1991 SCMR 1371; 1997 SCMR 1085; 1999 SCMR 2115; PLD 1988 Pesh. 65 and PLD
1993 Pesh. 71 ref.
(b) Administration of justice---
----Court of law was to decide a' case keeping in view the rights and liabilities of the
parties in the light of the record on file and not merely to dispose of a case in a hurry---
Courts being the ultimate protectors of the rights of the litigants, had the responsibility to
ensure that valuable rights of such litigants were not destroyed by their unintentional
faults and innocent mistakes.
(c) Oaths Act (X of 1873)---
---Ss. 5, 7, 8, 9 & 10-Qanun-e-Shahadat (10 of 1984), Art.163---Oath---Party could offer

oath to the opposite party, after due consideration; the Court could consider whether such
an offer should or should not be made in circumstances prevailing at the time of such
offer; that an application for making such oath was made to the Court and the party to
which the offer was made, was provided chance to consider the offer with diligence, and
if such party agreed to take oath, the statement of the parties were recorded---Court could
then, either proceed with the oath taking by itself, or could depute a commission for
taking such oath---Court should avoid the situation where one party in the heat of
discussion, or in emotional situation offered oath to the opposite party without due
consideration of its effects and without submitting a proper application and the opposite
party in the same circumstances immediately accepted the offer without having a chance
Page No. 1 of 5
of patiently considering the consequences of oath.
Ziaur Rehman for Petitioners.
Abdul Latif Afridi for Respondent.
Date of hearing: 11th May, 2005.
JUDGMENT
Mudam Gul son of Saida Gul instituted a Suit No.37/1 on 25-3-1996 for possession
through pre-emption of the suit property measuring 36 Kanals sold through Mutation
No.1171 attested on 22-10-1989. This suit was contested by the defendants and issues
were framed. An application was also submitted by the Arbitrators who mentioned that
the parties had decided the matter on the basis of arbitration and it was requested that the
Award of the Arbitrators be made as rule of the Court. This application was entered at
No.154/1-A, instituted on 12-9-1990, and was decided and dismissed on 24-3-1997 on
the ground that no evidence was produced about its genuineness or correctness and that
Muzaffar Shah was not entitled to enter into any agreement with Mudam Gul without the
special or general power of attorney on behalf of his other brothers. It was further held
that all the parties to the dispute had not given consent for arbitration and no notice or
intimation had been shown to had been given to all the parties in dispute, and no umpire
had been appointed to the arbitration. The suit of the plaintiff was also dismissed on 24-3-
1997.
2. The case was; however, remanded back, on appeal, by the learned Additional District
Judge, Charsadda, vide his judgment and decree dated 1-12-1997, in Civil Appeal
No.38/13 instituted on 16-4-1997. An application dated 27-7-1999 was submitted by the
defendants against the Civil Judge named therein on the ground that the defendants did
not expect justice from him. It was mentioned that the next date in his Court was 28-7-
1999. The comments of the learned Civil Judge were obtained. It was also brought to the
notice of the Court that another application for transfer of the case from the Court
concerned was also pending. The learned District Judge, Charsadda, vide his order, dated
31-7-1999, dismissed the application with direction to the learned Civil Judge to decide
the case purely on merits without giving any partial signs to any party. It was on 18-9-
1999 that the same learned Civil Judge, who had admitted that he had become prejudiced
with the transfer application and was under the direction not to show any partial signs to
any party, recorded order-sheet No.7 as follows:--
"0-7 18-9-1999. Parties and their respective counsel present. Arguments were
addressed and record of the case gone through.
During the course of arguments of the learned counsel for plaintiff/applicant/pre-

emptor, the attorney for the defendants, in the presence of the counsel for the
parties, made an offer at bar, to the plaintiff, to the effect, that if plaintiff could say
it on oath that arbitration documents Exh. R. W.1/1 to Exh. R. W.1/2 are genuine
and that arbitration had in fact taken place, then he would have no objection if
plaintiff's suit for pre-emption is decreed.
Plaintiff, there and then, accepted the offer as per the demand of defendants'
attorney, he performed ablution. He took oath on Holy Qur'an, and admitted the
afore-referred documents to be true and genuine.
When the oath was administered to the plaintiff, as per offer, defendants attorney
demanded that plaintiff should further qualify his oath with the pronouncement of
Talaq. This was not only denied by the plaintiff himself but the Court also
deprecated the additional qualification, which was also not a part of the first offer.
To this, defendants' attorney resiled and refused to sign the statement containing
oath proceedings.
In view of above, I am of the view, that a party cannot resile from the offer of
Page No. 2 of 5
oath, when the oath, as per the offer, has already been administered. To make
plaintiff, to further declare his oath words with the pronouncement of Talaq, is
neither permissible under the law, nor it was a part of the first offer.
I, therefore, held that after the administration of oath, the plaintiff is entitled to the
decree for pre-emption.
Decree for possession through pre-emption is accordingly granted. No order as to

costs. File be consigned to the record room after its completion."
The defendants' Civil Appeal No.65 of 2000, instituted on 25-1-2000, decided on 20-6-
2000, was dismissed by the learned Additional District Judge, Charsadda. Hence the
present civil revision. I heard the arguments of Mr. Ziaur Rehman Khan, Advocate for the
petitioners and Mr. Abdul Latif Afridi, Advocate for the respondents, and perused the
record of the case.
3. Leaned counsel for the petitioners submitted that the offer and acceptance of the oath
was the result of emotional decision at the spur of the moment and the mode of oath was
not clear as the people from village confirm the oath by Talaq in support of the oath on
Holy Qur'an, that the petitioners had refused to sign the statements of the parties
regarding the oath and that the learned Civil Judge had made his decision in a hurry, in
spite of the fact that applications for transfer of the case against him were filed by the
present petitioners on the ground that they had no confidence in him. The learned counsel
for the respondent, however, argued that the oath on Holy Qur'an was sufficient
compliance of the offer of the petitioners and the people from villages take Holy Qur'an
in high esteem.
4. While discussing the Award of the Arbitrators, the learned counsel for the petitioners
and of the respondent discussed the decision reported in the following cases:-
(i) 1999 SCMR 2702; (ii) 1999 CLC 1685; (iii) 1998 SCMR 816; (iv) PLD 2002
SC 310; (v) PLD 1984 Pesh. 121.
5. The Arbitrators in this case were allegedly appointed by the plaintiff and one of the
defendants and not by the Court. The evidence of the parties had been recorded by the
Court of competent jurisdiction in respect of the correctness and genuineness, or
otherwise of the Award. All the factual and legal points concerning the appointment of the
Arbitrators, the consent of the parties to such appointment, the appointment of umpire,
the registration of Award, and other related matters could be decided in the light of the
evidence and arguments of the parties by the learned Original Court. But he decided the
matter on the basis of the disputed oath.
6. The learned counsel for the petitioners relied on the judgments in the cases which are
as follows:
(i) 1999 MLD 389; (ii) PLD 1990 SC 841; (iii) PLD 2002 SC 655; (iv) PLD 1993
Pesh. 72.
The learned counsel for the respondent referred to the judgments in support of his case
which are as under:
(i) 1991 SCMR 1371; (ii) 1997 SCMR 1085; (iii) 1999 SCMR 2115; (iv) PLD
1988 Pesh. 65 (v) PLD 1993 Pesh. 71.
7. The oath under Article 163 of the Qanun-e-Shahadat, 1984 is different in nature from
the oath under the provisions of the Oaths Act, 1873. In the first case, the plaintiff takes
oath in favour of his claim, submits an application that the defendant may take oath in
support of his plea and the case is decided on completion of the proceedings. In the ease
of oath under the Oaths Act, 1873, a party may offer oath to the other party or its witness
and may bind himself by taking of such oath. It has always been held that the decision of
cases on the basis of oath is an established mode of decision of cases. Generally, a party
cannot resile from the offer of oath, when the oath, as per offer, has been administered.
Page No. 3 of 5
The Court, in such a case, has no other alternative but to decide the case in accordance
with the effect of the oath. Such oath, however, is to be offered with due diligence and is
to be accepted after due consideration. There are circumstances in which such offer is
made to the opposite party after considering its effect and the opposite party may either
accept or reject the offer after considering its consequences. In such circumstances, the
parties are well-composed and not overcome by spontaneous emotions. The party
offering the oath must be mentally calm and considering when he so offers, must not be
under the influence of emotions and must be in a position to clearly know that he will
lose his right, if any, if the oath is taken by the opposite party. The people of villages,
when not sufficiently educated and properly experienced, offer oath during heated
discussions, only to oppose the stance of the opposite party and to show that the opposite
party is telling a lie.
8. The Court of law is to decide a case keeping in view the rights and liabilities of the
parties in the light of the record on file, and not merely to dispose of a case in a hurry.
The Courts, being the ultimate protectors of the rights of the litigants., have the
responsibility to ensure that the valuable rights of such litigants are not destroyed by their
unintentional faults and innocent mistakes.
9. It has always been appreciated that a party may offer oath to the opposite party, after
due consideration, the Court may consider whether such an offer should or should not be
made in the circumstances prevailing at the time of such offer, that an application for
making such offer is made to the Court, and the party, to which the offer is made, is
provided chance to consider the offer with diligence, and if such party agrees to take oath,
the statements of the parties are first recorded. The Court may, then, either proceed with
the oath taking by itself, or may depute a commission for taking such oath. The Court
should avoid the situation where one party, in the heat of discussion, or in emotional
situation, offers oath to the opposite party without due consideration of its effects, and
without submitting a proper application, and the opposite party, in the same
circumstances, immediately accepts the offer without having a chance of patiently
considering the consequences of oath.
10. The learned Judge of the Original Court in this case was required to be more cautious
in the circumstances that transfer applications had recently been made against him by the
petitioners who had lost their confidence in him. He did not receive an application from
the petitioners and was in such a hurry that he, even, did not record the statements of the
parties before taking the oath. It was just immediately after taking the oath that it became
controversial and the petitioners refused to sign the statements as they were not satisfied
with the proceedings. The evidence of the parties had already been recorded. Each of the
witnesses of the parties was not only legally bound to take oath before starting his
statement in Court, but each of the witnesses was legally required to speak the truth and
nothing but truth. A special oath at the time of arguments and with such a lightening
rapidity was not expected of an impartial judicial officer, as he had a chance to decide the
case on its own merits just immediately after the close of the arguments, and to keep the
way open for the aggrieved party to go on appeal/revision against his order, instead of
closing the way for the aggrieved party by the unnecessary oath taking.
11. The learned Additional District Judge-II, Charsadda, took the oath proceedings on
their face value without looking to the actual prevailing circumstances at the time of the
oath. The learned Civil Judge took opportunity with such a speed and hurry that he did
not fix the sale consideration of the suit-land in his final judgment and decree, and the
learned Additional District Judge had to take it upon himself to fix the amount of sale
consideration and also directed for its deposit. In the light of the above discussion, The
impugned judgment and decree of the learned Additional District Judge is not based on
solid reasons and is, therefore, liable to be set aside.
12. In the peculiar circumstances of this case, I deem it in the interest of justice to the
parties to accept this civil revision to set aside the judgment and decree of the learned
Additional District Judge, dated 20-6-2000 as well as the judgment and decree of the
learned Civil Judge dated 18-8-1999, and to remand the case back to the learned Senior
Civil Judge, Charsadda, with direction to either himself hear the arguments of the parties
and decide the case on its merits, or entrust it to a learned Civil Judge at the station for
Page No. 4 of 5
such decision. Parties are directed to appear before the said Court on 25-6-2005. The
parties are, however, left to bear their own costs.
H.B.T./452/P Case remanded.
***
Page No. 5 of 5
B efore Talaat Qayum Qureshi, J
BAKHTIAR AHMED---Petitioner
Versus
MUHAMMAD SAEED---Respondent
Civil Revision No.779 with C.M.A. No.726 of 2005, decided on 24th June, 2005.
Civil Procedure Code (Y of 1908)---
----O. VII, R. 2---Qanun-e-Shahadat (10 of 1984), Art. 163---Oaths Act (X of 1873), Ss.
8, 9, 10 & 11---Suit for recovery of amount---Decision on oath---During pendency. of
suit, defendant had himself made application to the effect that he was ready to take oath
on Holy Qur'an and his wife would stand divorced if his, oath was wrong that he had paid
the entire amount to plaintiff---Defendant further offered that in case plaintiff would take
oath on Holy Qur'an suit filed by him be decreed in his favour---Plaintiff admitted that he
was ready to take oath on Holy Qur'an as per offer of defendant and took Oath on Holy
Qur'an in the Court---Trial Court decreed suit accordingly and judgment and decree of
Trial Court was upheld by Appellate Court---Defendant who challenged concurrent
judgment of Courts below in revision, had contended that no decree could be passed even
if plaintiff had taken oath on Holy Qur'an---Validity---Contention of defendant was
repelled as offer made by defendant voluntarily, was accepted by plaintiff and on oath of
plaintiff Trial Court was satisfied that claim of plaintiff was genuine---Defendant could
not be allowed to make mockery of Holy Book and could not be allowed to resile from
offer given by him for it amounted to a binding contract unless it was found to be void or
stood frustrated---Trial Court had properly decreed the suit and Appellate Court had
rightly dismissed appeal of the defendant---In absence of illegality, material irregularity
or jurisdictional error or defect, concurrent findings of Courts below could not be
interfered with in revision before High Court.
PLD 1991 SC 383; 1987 CLC 1512; Muhammad Ali Butt v. Inspector General of Police,
Punjab, Lahore and 10 others PLD 1997 SC 823 and Attiqullah v. Kafayatullah 1981
SCMR 162 ref.
Muhammad Siddique Haider Qureshi for Petitioner.
ORDER
The respondent/plaintiff' filed suit for the recovery of Rs.1,02,000 against the
petitioner/defendant in the Court of learned Senior Civil Judge, Kohat. It was during the
pendency of the suit that the petitioner/defendant himself made an application on 9-9-
2003 that he was ready to take oath on Holy Qur'an and his wife would stand divorced if
his oath was wrong that he has paid the entire amount to the respondent/plaintiff. A
further offer was also made that in case the respondent/plaintiff would take oath on Holy
Qur'an, the suit filed by him be decreed in his favour.
2. The learned trial Court directed the respondent/plaintiff to file reply to the said
application. In the reply, the respondent/plaintiff admitted that he is ready to take oath on
Holy Qur'an as per offer of the petitioner/defendant. It was eventually on 25-10-2003 that
the respondent/plaintiff took oath on Holy Qur'an in Court. In addition to that he also
stated that his wife would stand divorced in case he told lie before the Court. Upon taking
oath on the Holy Qur'an, the learned trial Court decreed the suit of the
respondent/plaintiff as per offer made by the petitioner/defendant vide judgment and
decree dated 25-10-2002. Being not contented with the said judgment and decree, the
petitoner/defendant filed appeal in the Court of learned District Judge, Kohat which was
dismissed vide judgment and decree dated 11-2-2005. Feeling aggrieved with the
judgments and decrees of both the Courts below, the petitioner/defendant has filed the
revision petition in hand.
Page No. 1 of 3
3. Mr. Muhammad Siddique Haider Qureshi, Advocate the learned (sic)
petitioner/defendant had offered the respondent/plaintiff to take oath on Holy Qur'an but
he had himself offered to take such oath but this fact was ignored by the learned trial
Court.
4. It was further argued that under Article 163 of the Qanun-e-Shahadat, 1984 even if the
respondent/plaintiff had taken oath on Holy Qur'an, no decree can be passed against the
petitioner/defendant. Reliance in this regard is placed on' PLD 1991 SC 383 and 1987
CLC 1512.
5. I have heard the learned counsel for the petitioner/defendant at length and perused the
available record.
6. The argument of the learned counsel for the petitioner that no decree could be passed
even if the respondent/plaintiff had taken oath on Holy Qur'an has no force. Under Article
163 of Qanun-e-Shahadat, B 1984, when the plaintiff takes oath in support of his claim,
the Court shall on the application of the plaintiff call upon the defendant to deny the
claim on oath and the Court may pass such order as to costs or other matters as it' may
deem fit. In the case in hand the respondent/plaintiff had taken oath on the offer made by
the petitioner/defendant vide application dated 9-9-2003 that in case the
respondent/plaintiff would take oath on Holy Qur'an then he would be ready for payment
of the entire amount claimed by him. The said offer was accepted by the
respondent/plaintiff in his reply to the application filed on 6-10-2003 and it was on 25-
10-2003 that the respondent/plaintiff took oath on the Holy Qur'an before the Court.
While taking oath he also stated that in case he was telling lie before the Court his wife
would stand divorced. He had not only taken oath on Holy Qur'an but had also made his
wife divorced in case the oath was wrong. The learned trial Court was satisfied that the
claim of the respondent/plaintiff was genuine.
7. After the offer made by the petitioner/defendant, under section 8 of the Oaths Act,
1873, if any party to, or witness in, any judicial proceedings offers to give evidence on
oath or solemn affirmation in any form common amongst, or held binding by, persons of
the race or persuasion to which he belongs, and not repugnant to justice or decency, and
purporting to affect any third the Court may, if it thinks fit, notwithstanding person,
anything hereinbefore contained, tender such oath or affirmation at him.
8. The Court under section 9 of the Act ibid was to ask other party as to whether offer of
oath was acceptable to it or not. In the case in hand the learned trial Court directed the
respondent/plaintiff to file written reply to the application whereby offer of oath was
made and the reply was made on 6-10-2003 in which the said offer was accepted. The
Court under section 10 of the said Act proceeded to administer oath and the
respondent/plaintiff took oath on Holy Qur'an that his claim was genuine and correct and
that in case his oath was wrong, his wife would stand divorced. The petitioner/defendant
under section 11 of the Act ibid was bound by the offer made and the oath taken by the
respondent/plaintiff was evidence and conclusive proof of the matter.
9. Similar question came up for hearing before the august Supreme Court of Pakistan in
Mahmood Ali Butt v. Inspector-General of Police, Punjab, Lahore and 10 others PLD
1997 SC 823 in which it was held:--
"So, the special oath is administered to a party or nominated person or a witness

when a party offers to bind itself to the statement to be made on oath by the other
party. In Mst. Asifa Sultana v. Honest Traders, Lahore and another PLD 1970 SC
331 it was observed that the offer to abide by the oath of opposite party and its
acceptable by the other party was in the nature of an agreement and the question
whether the party who offered can resile from it depends on the facts and
circumstances of each case. Again, in the cases of Muhammad Akbar and another
v. Muhammad Aslam and another PLD 1970 SC 241; Attiqullah v. Kafayatullah
1981 SCMR 162; Muhammad Mansha and 7 others v. Abdul Sattar and 4 others
1995 SCMR 795; Muhammad Rafique and another v. Sakhi Muhammad and
others PLD 1996 SC 237, Maulvi Muhammad Ramzan v. Muhammad Ismail
Page No. 2 of 3
1982 SCMR 908 and Saleem Ahmad v. Khushi Muhammad 1974 SCMR 224 the
principle laid down is that a party offering to have a cause decided on oath and
undertaking to abide by the special oath of a person (party or not a party to the
suit) cannot be allowed to resile from it, for it amounted to a binding contract
unless it was found to be void or stands frustrated. So validity of decisions given
on the basis of special oath was upheld under the provisions of Oaths Act, 1873. It
will, therefore, be seen that `special oath' made basis of the decision in the instant
case is not covered by Article 163 of the Qanun-e-Shahadat and reference, to
Article 163 and alleged violation of any supposed prescribed procedure, urged by
the learned counsel is misconceived.
10. Likewise in a case Attiqullah v. Kafayatullah 1981 SCMR 162, the august Supreme
Court of Pakistan held that:
"The defendant challenged the said order before the High Court through revision
petition which was dismissed. Saleem Ahmad then filed a petition before this
Court which upheld the decision of the High Court in the following words:--
`The High Court rejected both the contentions and held that there was no ground
in law or in equity on which the petitioner could claim the right of resiling from
the solemn agreement which was entered into by him. Such an agreement was in
the nature of a contract and one of the contracting parties could not be allowed to
back out of it unless the contract was void or had become frustrated. None of
these eventualities had occurred in this case.'
We notice that in the present case also the petitioner had not raised any
contentions or alleged any facts on the basis whereof the trial Court (or for that
matter this Court) could either reach the conclusion that the contract was void or
had become frustrated. As such we are of the view that the learned trial Court was
justified in refusing to permit the petitioner to resile from his offer to be bound by
the oath."
11. The petitioner/defendant cannot be allowed to make mockery of Holy Book and
cannot be allowed to resile from the offer given by him, for it amounted to a binding
contract unless it was found to be void or stands frustrated.
12. The judgments cited by the learned counsel for the petitioner/defendant are not
applicable to the case in hand. In PLD 1991 Supreme Court 383, special oath was not
offered but the statements were only given on oath. The admissibility was discussed by
the august Supreme Court of Pakistan. Similarly in 1987 CLC 1512 both the parties had
taken special oath, therefore, it was held that the Court in such eventuality could proceed
under the law and decide the case on merits.
13. The learned trial Court has properly decreed the suit and the learned Appellate Court
has rightly dismissed the appeal of the petitioner/defendant. I have not been able to find
out any illegality or any material irregularity or jurisdictional error or defect warranting
interference in the impugned concurrent findings of the Courts of competent jurisdiction.
14. Since the petitioner/defendant has made mockery of the Holy Qur'an by himself
offering the oath and then take shelter of the technicalities in laws, therefore, the revision
petition in hand is dismissed in limine along with C. M. No.726 of 2005 with costs of
Rs.10,000 (Rupees Ten thousand only).
H.B.T./469/P Revision dismissed.
Page No. 3 of 3
Before Shah Jehan Khan, J
LAIQ DAD and others---Petitioners
versus
Mst. NOOR JEHAN and others---Respondents
Civil Revision No.609 of 1998, decided on 23rd May, 2003.
(a) Qanun-e-Shahadat (10 of 1984)---
----Art. 163---Oaths Act (X of 1873), S.8---Special oath---Disposal of dispute---

Principles---If a party or witness in proceedings makes an offer for disposal of dispute on
special oath, it is obligatory and not mandatory for the Court to accept the same---Offer
of taking special oath can only be accepted if it is not repugnant to justice and decency---
When a party cannot substantiate his claim through evidence, the provisions of Art. 163
of Qanun-e-Shahadat, 1984 would come into play---When a claim can be established
through evidence, the suit cannot be disposed of on taking oath either by plaintiff or by
the defendant---Only in a situation where both the parties agree upon disposal of suit on
the basis of general or special oath and both of them reduce their such consent into
writing and determine the terms of oath, the suit can be disposed of by taking oath in the
terms settled by the parties---Parties are bound by, the terms of oath and Court should
dispose of matter in the same manner.
(b) Oaths Act (10 of 1873)---
----Ss. 8 & 10---Qanun-e-Shahadat (10 of 1984), Art.163---Disposal of dispute through

oath---Absence of oath agreement between parties--Effect---Without an agreement
between contesting parties for disposal of dispute through special or general oath, the
Court cannot force any of the parties to take oath in support of its claim or to accept the
offer of the other party for taking of oath in rebuttal of the claim of the party.
(c) Specific Relief Act (I of 1877)---
----S. 42---Qanun-e-Shahadat (10 of 1984), Art.76---Title over suit land--Plea of

Pardahnashin lady---Failure to produce secondary evidence---Sale mutations in favour of
defendants were assailed by plaintiffs on the ground of fraud---Trial Court decreed the
suit for the reason that the plaintiffs were Pardahnashin ladies and the person who
identified them was not produced as witness by the defendants---Judgment and decree
passed by the Trial Court were maintained by Appellate Court--Validity ---No attempt
was made by defendant to produce the identifier although he had died during the
proceedings---No evidence was available to show that at, the time of submission of list of
witnesses by the defendant, the identifier was not alive---Even no attempt was made to
produce secondary evidence due to the death of the identifier---No corroborative
evidence of the -solitary deposition of one of the defendants, although the Trial Court had
given sufficient opportunities to establish the genuineness of the sale mutation in their
favour---Concurrent findings of the two Courts below were neither suffering from any
jurisdictional or any other legal infirmity or misreading or non-reading of evidence---
Such findings were immune from interference by High Court under its revisional
jurisdiction.
Mst. Miraj Bibi and others v. Province of Punjab 2001 SCMR 1591 and Mst. Jannat Bibi
v. Sikandar Ali- and others PLD 1990 SC 642 ref.
(d) Qanun-e-Shahadat (10 of 1984)---
----Arts 117 & 120---Burden of proof ---Pardahnashin lady ---Principle--Where

Pardanashin lady is party to a suit, burden is on the male contestants to establish the
Page No. 1 of 6
ouster of Pardanashin lady from ownership or possession or any other right allegedly
transferred to the male person.
Ghulam Ali and others v. Mst. Ghullam Sarwar Naqvi PLD 1990 SC 1 and Fateh Sher v.
Sharif Khasun and others 1986 CLC 320 ref.
Abdul Raziq Khan for Petitioners.

Haji M. Zahir Shah for Responders.
Date of hearing: 23rd May, 2003.
JUDGMENT
This revision petition is directed against the judgment and decree passed by Civil Judge,
Banda Daud Shah in Suit No.8/1 of 1994 dated 16-11-1996 which were also upheld in
Appeal No. 17/13 of 1997 dated 18-9-1998 by the District Judge, Karak.
2. Respondents No. l and 2 brought a suit against their real brothers, the petitioners, their
mother (now dead) and respondents No.3 to 173 (some of them were impleaded as legal
heirs on the death of original defendants). The relief sought was declaration of their title
in the land fully described in the heading of the plaint with consequential relief: In the
averments of the plaint, it is alleged that their father Mian Dad was owner of landed
property in Ahmadi Banda and Barbara Banda. He was also mortgagee of certain lands
fully mentioned in the heading of the plaint. On the death of Mian Dad his Inheritance
Mutation No.2336 respecting landed property situate in Ahmadi Banda, Inheritance
Mutation No.831 respecting property situate in Barbara Banda were entered and attested
on 23-8-1966 in favour of the plaintiffs, the petitioners and their mother, then alive, being
legal heirs. Subsequently, the petitioners while entering into collusion with the Revenue
Staff without the knowledge and consent and permission of the plaintiffs, their share was
transferred to the names of the petitioners: The transfer was made on the fictitious Sale
Mutation 2358 by the plaintiffs and their mother in respect of their ownership of the
landed property in 1Ahmadi Banda for sale consideration of Rs.400 while their title in
Barbara Banda were alienated through sale Mutation No.859 for a sale consideration of
Rs.2,000 and Sale Mutation No.860 for Rs.l,666.65 regarding the lands mentioned
therein. The plaintiffs alleged to have not sold the said lands to the petitioners and had not
received any sale consideration: They did not appear before the Revenue Officer for
attestation of the aforesaid three sale mutations and even their statements were not
recorded in' this respect by any body. One Fazal Amin, Member, Union Council and also
related to the plaintiffs and contesting respondents was appointed as local commission by
orders dated 28-3-1967 and 29-3-1967. Since the said local commissioner did not enter
into collusion with the petitioners, he was replaced by Girdawar Circle who recorded the
fictitious statements of the plaintiffs and their mother on 4-6-1967 regarding their consent
of attestation of sale mutation in favour of the petitioners and the sale mutations based on
collusion were accordingly attested. The attestation was not made in the concerned
Revenue estate but in Revenue estate of Mauza Teri.
3. The petitioners filed their written statements jointly with the other defendants wherein
they raised a number of preliminary objections and denied the factual assertions of the
plaintiffs. Pleadings of the parties were culminated in the following issues:--
(1) Have the plaintiffs got a cause of action?
(2) Are the plaintiffs estopped?
(3) Is the suit within time?
(4) Is the suit incompetent in its present form?
(5) Is the suit bad for mis-joinder or non-joinder of parties?
(6) Is the suit false and the defendants are entitled to special costs?
Page No. 2 of 6
(7) Is the suit bad for mis-joinder of causes of action?
(8) Are the Sale Mutations Nos. 2358, 859 and 860 from the plaintiffs in favour of the
defendants Nos. l and 2 fraudulent and ineffective on plaintiffs' rights?
(9) Are the alienations made by the defendants inter se fraudulent and ineffective on the
plaintiffs' rights?
(10) Are the plaintiffs entitled to the decree as prayed for?
(11) Relief.
Both the parties adduced evidence as they wished to adduce and in the conclusion of the
trial, suit of the plaintiffs 'vas decreed. The two petitioners herein feeling aggrieved from
the decree preferred an appeal to the Court of District Judge which was also dismissed.
Thus, the instant revision has been filed against the concurrent findings of the two Courts
below.
4. I heard the learned counsel for the parties and perused the record. The petitioners have
also moved Civil. Miscellaneous No.427 of 2003 wherein they have offered a special
oath under section 8 of the Oaths Act, 1873 in the terms mentioned in the Civil
Miscellaneous. They have also offered to take Oath in case .the plaintiffs refused to do so.
The learned counsel for the plaintiffs-respondents refused the offer and prayed for
disposal of the revision petition on merits.
5. The law provides for disposal of civil disputes on- taking special oath covered by the
provision of Oaths Act, 1873 (Act X of 1873) and also through special oath under Article
163 of the Qanun-e-Shahadat Order, .1984. Section 8 of Act X of 1873 reads as follows;--
"8. Power of Court to tender certain oaths.----If any party to, or witness in, any
judicial proceedings offers to give evidence on oath or solemn affirmation in any
form common amongst, or held binding by, persons of the race or persuasion to
which he belongs; arid not repugnant to justice or decency and not purporting to
affect any . third person, the Court may, if it thinks fit, notwithstanding anything
hereinbefore contained, tender such ' oath or affirmation to him."
The provision contained in the aforesaid section of law reveals that if a party or witness
to the proceedings make an offer for disposal or dispute on special oath, it will be
obligatory and not mandatory for the Court to accept it. The offer of taking a special oath
can only be accepted if it is not repugnant to justice and decency. In the present case, the
petitioners never offered for disposal of the suit on taking special oath by the plaintiff or
in the alternative by them. Even at the appellate stage the petitioner did not offer special
oath and both the parties relied upon the evidence adduced by, them in the trial Court. In
these circumstances, it would be against the interest of justice and decency particularly
when the plaintiffs-respondents have refused to accept the offer, to accept the Civil
Miscellaneous for disposal of the litigation on special oath.
6. Under Article 163 of the ' Qanun-e-Shahadat Order, 1984, the Court can competently
dispose of a dispute on the basis of oath taken by the plaintiffs in support of their claim
and the defendants when called upon to deny the claim either take oath in denial or refuse
to take oath. Article 163 has been enacted for an eventuality where the plaintiffs could
not, establish their claim through evidence for cogent reasons. In such circumstances, the
plaintiff may offer to take oath in support of his claim. If the plaintiff taken oath, then the
Court shall call upon the defendant to deny the claim on oath. If the defendant refuses to
take oath in denial the Court may consider the statement on oath by the plaintiff in
support of his claim and pass a decree. But if the defendant opted to take oath in denial of
the claim, then the suit of the plaintiff shall be dismissed. Article 163 will come into play
only when the plaintiff could not substantiate his claim through evidence but when a
claim could be established through evidence there will be no occasion for the disposal of
the suit on taking oath by the plaintiff in support of his claim and oath by the defendant in
denial of the claim. Only in a situation where both the parties agreed upon I disposal of
the suit on the basis of general or special oath and both of them reduce their consent in
Page No. 3 of 6
this regard into writing and determining the terms of oath, in such circumstances, the suit
could be disposed of by taking oath in the terms settled by the parties and compliance of
the oath, parties shall be bound by it and the Court shall dispose of the matter in the same
manner. In the present case, the plaintiffs had not offered disposal of the suit on the basis
of oath as they were confident to establish their claim by means of evidence. The offer
made by the defendant-petitioners was also denied and thus without an agreement
between the contesting parties for disposal of the dispute through special or general oath,
the Court cannot force the plaintiff-respondent to take oath in support of their claim or to
accept the offer of the petitioner-defendants for taking oath in rebuttal of the claim of the
plaintiffs-respondents. In these circumstances, the prayer made in the Civil Miscellaneous
Application cannot be granted, thus dismissed.
7. In support of their claim, plaintiffs-respondents 1 and 2 have produced Patwari Halqa

and A.D.K. in addition to the statement of Mst. Noor Jehan P.W.3, one of the plaintiff.
They have established through evidence that the suit land was originally owned by Mian
Dad which was devolved upon the plaintiffs being daughters, petitioners being sons and
Mst.Noor Namula being widow. The Inheritance Mutation No.831 was attested on 21-2-
1967 and Inheritance Mutation No.2336 attested on 23-8-1966 in favour of all the
aforesaid legal heirs of Mian Dad. The lands transferred to the plaintiffs-respondents
through Inheritance Mutation was subsequently transferred to the petitioners through sale
mutation mentioned above. The petitioners who are beneficiaries under the sale mutation
have produced Laiq Zada, the petitioner-defendant as solitary witness of the defendants.
He has admitted that his father died in 1966 and his legacy was devolved upon his two
sons, two daughters and a widow. Subsequently, in 1966, the plaintiffs and their mother
Mst.Noor Namula sold away their entire holding to the petitioners and the plaintiffs being
Pardanashin ladies were examined by Girdawar Circle as, local commission. Thereafter,
the sale mutations were attested. The plaintiffs as vendors were identified by Subedar
Major Rahim Dad, their maternal uncle. The petitioner-defendants have neither produced
Rahim Dad identifier of the vendor of the disputed sale mutations nor the Girdawar
Circle who allegedly recorded the consent of the vendors who were Pardanashin ladies in
support of transfer in petitioners' favour. The solitary defence witness has stated that the
entire sale transaction was completed through the said Rahim Dad who happens to be
father-in-law of petitioner No.2. The sale consideration of Rs.2,000, Rs.400 and
Rs.1,666.65 as mentioned in-the three sale mutations were paid to the plaintiffs through
Rahim Dad in presence of Girdawar Circle who was appointed as local commission.
Rahim Dad was stated to have died on the day of recording statement of D.W.1 but his
name or the Girdawar Circle who was appointed as local commissioner were not
mentioned in the list of witnesses produced by the defendants and the defendants even
did not bother to produce any secondary evidence to prove the genuine sale in their
favour through the disputed mutations.
8. It is undisputed that the suit land owned by Mian Dad, father of the contesting parties,
was correctly devolved upon all his legal heirs in accordance with Shariah and the
inheritance mutation in this regard was properly entered and attested. The share of
plaintiffs-respondents was subsequently mutated in petitioners' favour through sale
mutation which are the subject-matter of the dispute. It is also an admitted fact that the
plaintiffs are the real sisters of petitioners and they are Parda-observing ladies. The
validity of the sale deeds in favour of the petitioners was questioned on the basis of fraud.
In identical situation, the case of Mst. Miraj Bibi and others v. Province of Punjab (2001
SCMR 1591) came before the august. Supreme Court and it was held:
"It is now well-settled that in cases where pleas of fraud, deception and
misrepresentation have been taken by illiterate Pardanashin ladies in the alleged
disposal of their property, the onus in such cases lies on the person who takes
advantage of the transaction to prove the genuineness and bona fide of the
documents through which transaction has been executed and that the contents of
such documents were fully conceived and understood by executing independently
and freely."
Reference may also be made to the case of Mst. Jannat Bibi v. Sikandar Ali and others
(PLD 1990 SC 642).
Page No. 4 of 6
9. The petitioners who are beneficiaries under the disputed sale mutations were legally
burdened to prove the genuineness of the sale transaction. The petitioners have miserably
failed to establish that the suit land was genuinely sold to them against the sale
considerations mentioned in the sale mutations. It was not established that the plaintiffs
were duly examined by the Girdawar Circle as local commissioner and also the
petitioners have miserably failed to established transfer of sale consideration to the
plaintiffs. It is unrebutted evidence of the plaintiffs that initially one Fazal Azim, Member
of the Union Council and also closely related to the parties from whom the plaintiffs were
not observing Parda was appointed as local commissioner through order in writing dated
26-3-1967 and 29-3-1967 but he was subsequently replaced by Girdawar Circle for
examination of the plaintiffs as local commissioner. The alleged identifier of the plaintiffs
as vendors was though equally related to the contesting parties being maternal uncle but
he was more closer to petitioner No.2 in relation being his father-in-law. Even no attempt
was made to produce the said identifier although he had died during the proceedings as
stated by the solitary witness of the defendant in his statement but there is no evidence to
show that at the time of submission of list of witnesses by the defendants side he was not
alive and even no attempt was made to produce secondary evidence due to the death of
identifier. There is no corroborative evidence whatsoever of the solitary deposition of one
of the petitioners-defendants in the trial Court although sufficient opportunity was
afforded to them to establish the genuineness of sale mutation in their' favour.
10. As regards the illiterate Pradanashin ladies, in a case where male members of the
family were claiming adverse possession against Pardanashin ladies, the august Supreme
Court has observed in Ghulam Ali and others v. Mst.Ghulam Sarwar Naqvi (PLD 1990
SC 1) as follows -
"Dealing particularly with females it is to be noticed that: Where one is concerned

with Pardanashin Muslim females, different considerations apply from those that
apply between adult males even as regards adverse possession. In the latter case if
the possession is neither obtained by force nor by fraud nor in secret, it does not
matter that it is in fact not known to the person against whom adverse possession
is alleged, the law is satisfied if that person would have known had he been
acquainted with what was "going on in the world. In their case it is necessary to
find not mere adverse possession but ouster."
The law and practice for administration of justice has drawn a line in the case where
Pardanashin lady is a party than the case in between adult. In case where Pardanashin
lady is party to a suit, it would be the burden of male contestants to establish the ouster of
the Pardanashin lady from ownership or possession or any other right allegedly
transferred to the male party. In the present case, the petitioners-defendants who claim to
be the vendees of the plaintiffs' share in the legacy of their father have miserably failed to
adduce any cogent evidence to establish the genuineness of the sale mutations or to rebut
the assertion of fraud or to ouster the Pardanashin illiterate female plaintiffs.
11. Yet in another case where gift by the illiterate female in favour of was made sub'
judice before the Court, the said case is Fateh Sher v. Sharif Khasun and others (1986
CLC 320) and the Court arrived at the following conclusions;
"We cannot also lose sight of the fact that the donors in this case are illiterate
peasant women. They are sisters of the donees and are thus so related to them. In
the case of gift allegedly made by them strictest proof of the factum of gift has to
be insisted upon. The petitioners unfortunately have not been able to lead
evidence of that standard."
11. The learned counsel for the petitioner lastly submitted that the plaintiffs-respondents
have claimed declaration of their title in respect of their share and have questioned the
legality of sale mutation on their behalf only while the-sale mutation to the extent of their
mother Mst.Noor Namula could not be challenged by them, but the two Courts below
have decreed the suit of plaintiffs-respondents and have cancelled the sale mutations in
toto which also include the share of Mst.Noor Namula. The learned counsel representing
the plaintiffs-respondents did not controvert the contention and submitted that the sale
mutations were challenged to the extent of share of the plaintiffs allegedly sold to the
Page No. 5 of 6
petitioners through the said mutations. The contention of the learned counsel for the
petitioners is misconceived in the sense that plaintiffs/respondents hove sought the
declaration of their title to the extent of their share and have questioned the legality of
sale mutations to the extent of their share only. Mst.Noor Namula, mother of the plaintiffs
was arrayed as defendant No.3 who has filed a joint written statement with the petitioner
and have not denied her transaction with the petitioners regarding her share. The trial
Court has granted decree to the plaintiff against the defendants and the effect of the
disputed sale mutation was considered qua plaintiffs only. Mst.Noor Namula is now dead
and the petitioners and plaintiffs-respondents are admittedly their Shari heirs. If any
property is found left behind her on the day of her death would be devolved upon her
Share heirs and the disputed sale mutations shall stand cancelled to the extent of share of
the plaintiffs/respondents.
12. In view of the aforesaid facts and circumstances and taking guidance from the quoted
case-law, I arrive at conclusions that the concurrent findings of the two Courts below are
neither suffering from any jurisdictional or any other legal infirmity, or misreading or
non-reading of evidence immune from interference by this Court under its revisional
jurisdiction. Resultantly, this revision petition is dismissed alongwith the Civil
Miscellaneous with no order as to costs.
M.H./936/P Revision dismissed:
Page No. 6 of 6
2003 M L D 1718
[Lahore]
Before Tanvir Bashir Ansari, J
MANZOOR AHMED ---Petitioner
Versus
GUL MUHAMMAD ---Respondent
Civil Revision No.484-D of 1989/BWP, decided on 8th October 2002.
Civil Procedure Code (V of 1908)---
----O.VII, R.2---Qanun-e-Shahadat (10 of 1984), Art.163---Suit for recovery of amount---

Administration of Special Oath---Plaintiff had supported his case on Special Oath, but
defendant, in rebuttal refused to make a statement upon oath in denial---Trial Court
decreed the suit and appeal against judgment of Trial Court filed by defendant was also
dismissed by Appellate Court---No adverse presumption could be drawn upon refusal to
administer special oath under Art.163 of Qanun-e-Shahadat, 1984---Both the Courts did
not solely rely upon the effect of refusal of defendant to take Special Oath, but had relied
upon respective evidence produced by the parties---No misreading or non-reading of
evidence on record by Courts below having been shown, High Court declined
interference.
Muhammad Anwar Saleem for Petitioner.
Muhammad Ashraf Mohandara for Respondent.
JUDGMENT
This civil revision is directed against the judgment and decree dated 8-6-1989 passed by a
learned Additional District Judge, Rahimyarkhan, by which, the appeal of the petitioner
was dismissed and the judgment and decree dated 13-3-1989 passed by the learned trial
Court in favour of the respondent was upheld.
2. The facts are that a suit for recovery of Rs.7243.50 was filed by the respondent as
balance of the cost of construction work done by him for the petitioner. The fact that the
respondent did the construction work was admitted by the petitioner. However, it was
contended that total cost of work was fixed as Rs.11,000 whereas the work already done
by the petitioner before entrusting it to the respondent was of the value of Rs.2344.23.
The petitioner also averred that the respondent was also given a Television worth Rs.3450
and a water cooler worth Rs.1,000.
According to the petitioner, an excess amount of Rs.2189 was received by the respondent
which he was liable to refund.
3. The evidence of the parties comprises of the statement of the respondent/plaintiff as

P.W.1 and the statement of the petitioner as his own witness as D.W.1. No documentary
evidence was produced. However, the respondent also supported his case by a statement
on special oath. In rebuttal, the petitioner refused to make a statement upon such oath in
denial.
4. The learned trial Court vide judgment and decree dated 13-3-1989 decreed the suit of
the respondent in the sum of Rs.5,500 with cost.
5. The petitioner filed an appeal which was dismissed vide judgment and decree dated 8-
6-1989. While dismissing the appeal, the learned Appellate Court found that the
Page No. 1 of 2
petitioner had admitted that he got his house constructed for the respondent and that he
had paid Rs.11,000 to him in this connection. The petitioner further stated to have given a
T.V. and water cooler to the respondent in liquidation of the amount due on account of the
construction work. It was noticed by the learned Appellate Court that a cheque in the sum
of Rs.3,000 was issued by the petitioner to the respondent which was dishonoured. The
contention of the petitioner that the cheque was stolen from the Cheque Book was not
believed by the learned Appellate Court.
6. In this civil revision the concurrent findings of fact have been challenged on the
ground that the petitioner/defendant was not under a legal obligation to deny the claim of
the respondent/plaintiff in terms of Article 163 of the Qanun-e-Shahadat Order, 1984. It is
contended that no adverse inference would follow from the refusal of the petitioner to
deny the claim of a respondent on special oath. It is contended that the findings of both
the learned lower Courts to the contrary are without lawful effect.
7. It is true that no adverse presumption can be drawn upon the refusal to administer
special oath under Article 163 of the Qanun-e-Shahadat Order, 1984. Nonetheless the
learned Appellate Court relied upon the respective evidence produced by the parties and
concurred with the findings of the learned trial Court. The learned Appellate Court did
not solely rely upon the effect of refusal of the petitioner to take the special oath. The
learned Appellate Court was also correct in holding that as the suit was not based on a
written contract or any receipt, it was the Civil Court which had the jurisdiction to try the
suit.
8. Apart from the contention made above, no other point was urged on behalf of the
petitioner. No misreading or non-reading of evidence, was pointed out. Resultantly, this
civil revision is without merit and is hereby dismissed. No order as to costs.
H.B.T./M-2035/L Revision dismissed.
Page No. 2 of 2
2003 M L D 131
[Lahore]
Before Ch. Ijaz Ahmad and Sakhi Hussain Bukhari, JJ
Qazi MUHAMMAD SAQIB KHAN---Appellant
Versus
GHULAM ABBAS and 2 others---Respondents
Regular First. Appeal No.8 of 1995, heard on 14th March, 2002.
(a) Specific Relief Act (I of 1877)---
----Ss. 4 & 12---Contract Act (IX of 1872), Ss.2(b)(e)(g)(h) & 10----Oral and written
agreement---Specific performance of such agreement--Essentials---Agreement/contract
made between competent parties with their consent for lawful consideration and lawful
object is binding on the parties---Contract can be in writing as well as oral---Oral
agreement is valid agreement in eye of law---Oral agreement not specifying terms and
conditions of agreement is not valid in eye of law ---Intention of Legislature is that there
should be a concluded valid contract---Oral agreement is valid and enforceable as written
agreement, provided same fulfils all requirements of a valid contract---Oral valid
agreement is enforceable and specific performance thereof can be granted---Object of S.4
of Specific Relief Act, 1877 is to exclude agreements not enforceable by law.
(b) Specific Relief Act (I of 1877)---
----S.12---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Contract Act. (IX of 1872),

S.2(b)---Suit for specific performance of agreement to sell---Original vendor orally
agreed to sell disputed land to plaintiff, but later on his father executed written agreement
in favour of plaintiff--Trial Court dismissed suit---Validity---None of plaintiff's witnesses
stated that original owner had received earnest money from plaintiff--Such oral
agreement did not fall within definition of S.2(b) of Contract Act, 1872---Plaintiff and his
witnesses admitted in cross-examination that father of original owner had not produced
general power of attorney at the time of execution of agreement to sell---Such written
agreement having not been signed by plaintiff same was no agreement in eyes of
law---Plaintiff was bound to produce two attesting witnesses in view of Arts. 17 & 79 of
Qanun-e-Shahadat, 1984---Plaintiff had failed to prove that there was any oral or written
agreement validly executed between him with original vendor and his father---Plaintiff
was not entitled to decree for specific performance---High Court dismissed appeal as
having no merits.
Bashir Ahmad v. Muhammad Yousaf represented by Muhammad Shafique 1993 SCMR

183; Gulzar Hussain v. Abdur Rehman and another 1985 SCMR 327; Abdul Majid v.
Syed Muhammad Ali Shamim 2000 SCMR 1391 and Salman Ali v. Maqbool Hussain
2000 YLR 1938 ref.
(c) Practice and procedure---
---- Plaintiff/appellant has to prove his case independently and cannot get benefit of
shortcomings of defendant/respondent.
(d) Civil Procedure Code (V of 1908)---
---O.XLI, R.33---Issues not pressed at the time of arguments before Trial

Court---Effect---Appellant had no right to assail finding on such issues before Appellate
Court:
(e) Qanun-e-Shahadat (10 of 1984)----
Page No. 1 of 5
----Art.163--Decision of case on the basis of oath---Scope---Duty of Court---Such was
one of the established modes for disposal of cases--Courts were bound to handle such
cases with great care to avoid haste and rationalize emotional outbursts as such cases
involved sensitiveness---When evidence was available and could be produced, then resort
to Art. 163 of Qanun-e-Shahadat, 1984 could not be made---Where both parties had led
evidence, then no adverse presumption could be drawn against defendant in case of his
refusal to accept offer of plaintiff for decision of case on oath.
Shakir Ullah's case 1999 MLD 389; Muhammad Sharif's case 1987 CLC 2006; Sher
Bahadar Khan's case 1992 MLD 46 and Bashir Ahmad's case 1999 SCMR 378 ref.
(f) Civil Procedure Code (V of 1908)---
----O.XXXIX, R.1---Restraint order---Decree obtained in presence thereof---Nullity in

eyes of law.
Abdul Wahid Malik and Abdul Rashid Malik for Appellant.
Nemo for Respondent No.2.
Mian Sarfraz-ul-Hassan for Respondent No.3.
Date of hearing: 14th March, 2002.
JUDGMENT
CH. IJAZ AHMAD, J.---The brief facts out of which the present appeal arises are that
Ghulam Abbas original owner of the land in question executed an oral agreement with the
appellant on 6-8-1989. Subsequently Khadim Hussain father of the original owner.
Ghulam Abbas executed written agreement to sell with the appellant on 3-9-1989.
Agreement to sell was witnessed by Haji Ghulam Nabi and Tauseef-ur-Rehman and the
agreement to sell was written by Ghulam Sabir Sulehria, Advocate' P.W.1. The
respondents failed to execute sale-deed in favour of the appellant. The appellant being
aggrieved, filed suit for possession through specific performance before the learned Civil
Judge 1st Class, Wazirabad on 30-1-1990. The respondents filed written statement and
controverted the allegations levelled in the plaint. Out of the pleadings of the parties the
learned trial Court framed the following issues:--
(1) Whether the defendant No. 1 had orally .entered into an agreement of sale, in
relation to the land in dispute, with the plaintiff? OPP
(2) If Issue No. 1 is answered in the affirtmative, whether the plaintiff is entitled
to the specific performance of the oral agreement of sale, entered into between the
defendant No. 1 and the plaintiff? If so, on what terms? OPP
(3) Whether the plaintiff has got no locus standi and cause of action to file the
present suit? OPD
(4) Whether the plaintiff is estopped to file the present suit? OPD
(5) Whether the present suit is not maintainable, in its present form, in view of
preliminary Objection No.5 of the written statement? OPD
(6) Whether the suit is frivolous and vexatious and as such the defendant No.3 is
entitled to special costs under section 35-A. C.P.C.? OPD
(7) Relief.
2. At the end of the trial the learned trial Court dismissed the suit vide judgment and
decree dated 12-1-1995. The appellant being aggrieved filed this appeal.
Page No. 2 of 5
3. The learned counsel of the appellant submits that the oral agreement was proved by the
appellant by producing P.W.2 Arshad, P.W.3 Muhammad Tufail and P.W.4 Qazi
Muhammad Saqib and the written agreement was proved by producing Ghulam Sabir
writer as P.W.1. He further submits that agreement to sell was exhibited as Exh. P. I. and
the respondents did not raise any objection at the time of exhibiting the aforesaid
agreement to sell. Therefore, the learned Court below was erred in law to discard the
agreement to sell which was placed on record in accordance with law and therefore,
judgment of the learned trial Court is not in accordance with law and the principle laid
down by the Hon'ble Supreme Court. In support of the contention he relied upon Bashir
Ahmad v. Muhammad Yousaf (deceased) represented by Muhammad Shafique (1993
SCMR 183). He further submits that Exh. P.I was exhibited without any objection by the
respondents and the learned trial Court was erred in law to discard the same. In support of
his contention he relied on Gulzar Hussain v. Abdur Rehman and Muhammad Yamin
(1985 SCMR 327). He further submits that respondents Nos. 1 and 2 did not appear in
witness-box to rebut the aforesaid agreement, therefore, the learned trial Court was erred
in law to ignore the factum of the execution of the agreement. In support of this
contention he relied on Abdul Majid v. Syed Muhammad Ali Shamim (2000 SCMR
1391). He further submits that respondent No. 1 had written a letter to the appellant on
9-9-1989 that he would come in the month of December and would execute sale-deed in
favour of the appellant. The learned trial Court was erred in law to ignore this letter on
the basis of surmises and conjectures while giving finding against the appellant in para. 6
of the impugned judgment. He further submits that the appellant had made an offer to the
respondents before the learned trial Court to decide the controversy between the parties
on oath but the respondents failed to accept the offer of the appellant. This fact was not
considered by, the learned trial Court in the impugned judgment, therefore, the judgment
of the learned trial Court is not valid in the eyes of law in view of the provisions of
Qanun-e-Shahadat Order, 1984. He further submits that the trial Court restrained
respondents Nos. 1 and 2 to alienate the land in question-till the decision of the suit vide
order dated 3-1-1990. Respondent No. 3 filed a suit for pre-emption against respondents
Nos. 1 and 2 which was decreed by the learned trial. Court vide judgment and decree,
dated 27-1-1992; the decree was passed in favour of respondent No.3 by way of a
compromise and that this fact is sufficient to show that the decree was procured
collusively. He further submits that appellant submitted an application before the learned
District Judge to consolidate both the suits which was accepted by the learned District
Judge vide order, dated 10-2-1990; that the trial Court decided the pre-emption suit of
respondent No.3 on 27-1-1992 in violation of the order of the learned District Judge and
that this fact also shows that the decree was procured by respondent No.3 by way of fraud
and misrepresentation. The learned counsel of the respondents submits that oral
agreement was not executed between the original owner and appellant and the trial Court
had given cogent reasons while giving findings against the appellant in para. 6 of the
judgment. He further submits that the agreement to sell has no sanctity in the eyes of law
as the father of the original owner had no right to execute agreement in favour of the
appellant as the original owner had not executed any Power of Attorney in favour of his
father to execute agreement to sell on his behalf qua his land. He further submits that the
father of the original owner was not a co-sharer even in the land in question. He further
submits that order, dated 10-2-1990 of the learned District Judge was not produced before
the learned trial Court as is evident from the proceedings of the learned trial Court. He
further urges that written agreement to sell does not fall in the definition of an agreement
as described in section 10 of the Contract Act.
4. We have considered the contentions of the learned counsel of the parties and perused
the record ourselves.
5. The first contention of the learned counsel of the appellant is that oral agreement is a
valid agreement in the eyes of law. There is no cavil with this proposition of law but the
oral agreement which does not specify terms and conditions of the agreement, is not valid
in the eyes of law. None of the witnesses of the appellant/plaintiff mentioned that
respondent No. 1 had received earnest money from the appellant. In this view of the
matter, we uphold the finding of the learned trial Court. The judgments cited by the
learned counsel of the appellant are distinguished on facts and law. Now we intend to
decide the written agreement executed by respondent No.2, father of the original owner,
is valid in the eyes of law or not. The appellant and appellant's witnesses admitted in the
Page No. 3 of 5
cross-examination that agreement was executed by the father of the original owner,
respondent No.2, who did not produce general power of attorney at the time of execution
of agreement to sell. It is pertinent to mention here that agreement to sell was not signed
by the appellant/plaintiff. It is well-settled law that agreement which was executed
between appellant and respondent No.2 is not agreement in the eye of law unless and
until the same was signed by the appellant/plaintiff coupled with the fact that agreement
to sell creates financial liabilities. Therefore, it is the duty of the appellant/plaintiff to
produce two attesting witnesses in view of Articles 17 and 79 of the Qanun-e-Shahadat
Order, 1984. In arriving to this conclusion we are fortified by the law laid down by this
Court in Suleman Ali v. Maqbool Hussain (2000 YLR 1938). In case the whole evidence
of the appellant be read as a whole then appellant/plaintiff failed to prove agreement qua
the land in question executed between the appellant and respondents Nos. 1 and 2. It is
also settled proposition of law that appellant/plaintiff has to prove its case independently
and cannot get benefit of shortcoming of the respondents/defendants. Since the
appellant/plaintiff failed to prove his case in terms of the parameters prescribed by the
superior Courts and in view of the aforesaid provisions of law, therefore, we uphold the
findings of the learned trial Court on Issues Nos. 1 and 3. It is pertinent to mention here
that the letter relied upon by the learned counsel of the appellant (Exh.P.2) relates to some
pre-emption suits filed by the appellant against father of defendant No.1. Therefore, trial
Court was justified to ignore the said document. Issues Nos.4, 5 and 6 were not pressed at
the time of arguments before the learned trial Court, therefore, appellant has no right to
assail the findings on the aforesaid issues before this Court. The last contention of the
learned counsel of the appellant that appellant submitted an application that the case be
decided on oath and the respondents failed to accept the offer of the appellant, therefore,
presumption be taken against, the respondents on the basis of Article 163 of
Qanun-e-Shahadat Order, 1984. The aforesaid article was interpreted by the superior
Courts and laid down a principle that no doubt decision of a case on oath is one of the
established modes for disposal of the case, but at the same time the Courts are bound to
handle such cases with great care because such cases involve sensitiveness and to avoid
haste and rationalize emotional outbursts. The superior Courts also laid down a principle
by interpreting Article 163 of aforesaid Order that when evidence is available and can be
produced then resort to Article 163 cannot be made. In this case both the parties had led
evidence and therefore, the provisions of said Article could not apply to it. Therefore, no
adverse presumption against the respondents/defendants could be drawn. In arriving to
this conclusion we are fortified by the following judgments: --
(1) Shakir Ullah's case (1999 MLD 389).
(2) Muhammad Sharif's case (1987 CLC 2006).
(3) Sher Bahadar Khan's case (1992 MLD 46).
(4) Bashir Ahmad's case (1999 SCMR 378).
The appellant/plaintiff failed to establish his case therefore, the fact that respondent No.3
secured a collusive decree in a pre-emption case does not change the fate of the case,
coupled with the fact that respondent No.3 secured a decree in presence of the restraining
order. The said decree is nullity in the eyes of law but keeping in view the aforesaid
circumstances the fate of the case cannot be changed. As mentioned above the appellants
failed to prove that there was any oral and written agreement validly executed between
the appellant/plaintiff with respondents Nos. 1 and 2/defendants. It is pertinent to mention
here that by order of the District Judge both the suits were consolidated vide order, dated
10-2-1§90 has also no force as the proceedings of the trial Court do not show that
aforesaid order was brought, into the notice, of the trial Court. It is pertinent to mention
here that section 4 of the specific Relief Act provides that except where it is otherwise
expressly enacted nothing in the Act shall be deemed to give any right to relief in respect
of any agreement which is not a contract. The object of this provision is to exclude
agreements which are not enforceable by law. Section 2(b) of the Contract Act defines
contract as an agreement enforceable by law. An agreement or a contract made between
the competent parties with their consent for lawful consideration and lawful object is
binding on the parties. The Legislature thus intends that there should be a concluded valid
contract. The contract can be in writing as well as oral. Oral agreement is a valid and
Page No. 4 of 5
enforceable as written agreement provided it fulfils all the requirements of a valid
contract. An oral agreement which is valid in law is enforceable and specific performance
of such agreement can be granted. In the present case the oral agreement does not fall
within the definition prescribed by the legislator in aforesaid section 2(b) of the Contract
Act. As mentioned above, in. the present case the plaintiff failed to bring on record any
material to show that earnest money was paid to the original owner. We have already held
above that written agreement was not executed by competent persons and appellant also
failed to prove the same in terms of Articles 17 and 79 of the aforesaid Order. In this view
of the matter, the findings of the trial Court qua the oral agreement as well as written
agreement are upheld, as the burden of proof is upon the shoulders of the
appellant/plaintiff which was not discharged by him as mentioned above. In view of our
findings on Issues Nos. 1 and 3 the appellant is not entitled to any decree for specific
performance in his favour. The judgments cited by the learned counsel of the appellant in
view of the special circumstances of this case are distinguished on facts and law.
In view of what has been discussed above, this appeal has no merits and the same is
dismissed.
S.A.K./M-1225/L Appeal dismissed.
Page No. 5 of 5
2003 M L D 210
[Lahore]
Before Maulvi Anwarul Haq and Pervez Ahmad, JJ
ALI AHMAD---Appellant
Versus
MUSNHI and another---Respondents
Regular First Appeal No.246 of 1994, heard on 28th March, 2002.
Specific Relief Act (I of 1877)----
----S.12---Qanun-e-Shahadat (10 of 1984), Art. 163---Oaths Act (X of 1873), Ss. 8, 9, 10

& 11---Suit for specific performance of agreement to sell---Plaintiff's plea was that
defendant's attorney had entered into agreement with him and had received earnest
money---Defendants denied such claim---Plaintiff on 22-9-1994 made application under
Art.163 of Qanun-e-Shahadat, 1984 for recording his, statement on oath only. Holy
Qur'an in support of suit---Plaintiff's counsel then made statement to the effect that if
defendants negated plaint on oath on Holy Qur'an, then suit be dismissed---Case was then
adjourned to 28-9-1994 for personal appearance of defendants, but they did not appear
and their counsel was delivered copy of application---Defendants filed application on
3-10-1994 stating that they did not want to take oath and prayed for decision of case on
merits---Defendants later on in joint statement recorded on Holy Qur'an denied to have
entered into agreement with appellant---Trial Court then dismissed
suit---Validity---Statement of plaintiff's counsel gave an impression that same was a case
of special oath in terms of Oaths Act, 1873---Matter of special oath contained in
statement of plaintiff's counsel, apart from being inconsistent with application filed by
plaintiff, came -to an end on 22-9-1994 and for such reason on 28-9-1994, copy of
application was delivered to defendants---Plaintiff on 5-10-1994 had- stated his case on
oath that defendant (attorney) alongwith defendant (principal vendor) had received
earnest money from him--Such statement had to be put to defendants and they had to be
-called upon to deny same on oath on Holy Qur'an which had not been done--Trial Court
had not made any effort to consider as to how suit was to be decided and that which was
the law according to which, same was to be decided---Law applicable being Art.163 of,!
Qanune-e-Shahadat, 1984 such was a case of general oath for all purposes and not of
special oath, as both parties had taken oath---Trial Court was bound to call upon plaintiff
to state as to whether he had some other evidence to offer in support of his case and in
case of his denial, the suit could have been dismissed treating same to be a case of oath
against oath---Plaintiff had not been given chance to prove his case by producing
evidence. had resulted in failure of justice---High Court accepted appeal, set aside
impugned judgment and decree, resultantly suit would be deemed to be pending before
Trial Court to be. decided after framing issues and recording evidence of parties.
Khan Sher v. Mst. Kabla and another PLD 1988 Pesh. 65; Bhore Khan v. Noor Din PLD
1993 Pesh. 72 and Muhammad Yousaf v. Bulanda through Legal Heirs 1999 SCMR 2115
ref.
Taki Ahmad Khan for Appellant.
Muhammad Yaqoob Sindhu for Respondents.
Date of hearing: 28th March, 2002.
JUDGMENT
MAULVI ANWARUL HAQ, J.---The respondents are paternal uncles of the appellant.
On 2-5-1994 the appellant filed a suit against the respondents. In the plaint, it was stated
that the suit-land mentioned in paras. Nos.1 and 2 of the plaint was respectively owned
Page No. 1 of 4
by respondents Nos. 1 and 2; that respondent No. 1 is unmarried while respondent No. 2
is issueless and after the death of his wife took up his residence with his brother,
respondent No. 1; that in March, 1993 respondent No. 1 has appointed Dil Muhammad
son of Sardar as an attorney; that said Dil Muhammad and respondent No.2 entered into
an agreement to sell the suit land to the appellant for a consideration of Rs.400,000; that
this was an oral agreement; that a sum of Rs.5,000 was paid to the said attorney and
respondent No.2 as earnest money, that Munir Hussain son of l3hola, a paternal uncle of
the appellant, when came to know about the said transaction persuaded the respondents to
take up residence with him; that in June, 1993 the appellant paid another .sum of
Rs.20,000 to the respondents, thus making a total of Rs.25,000 as earnest money, that the
said attorney of respondent No.2 informed Bulanda, the tenant of the suit land, of the said
agreement and directed him to attorn to the appellant; that now the said Munir Hussain
has got a general power of attorney from the respondents and has prevailed upon them
not to perform their part of the contract, rather is trying to sell the suit land to some other
parties. With these averments a decree for specific performance was sought.
2. The respondents filed a written statement on 19-9-1994 through the said Munir
Hussain, General Attorney. In the said written statement the said agreement or the receipt
of money was denied. It was, however, admitted that Dil Muhammad was the attorney of
respondent No.1 but has joined hands with the appellant. It was also alleged that the said
Bulanda, the tenant, is brother of the respondents and he is also in connivance with the
appellant. With these averments, a prayer was made for dismissal of the suit.
3. On 22-9-1994, the appellant filed an application under Article 163 of the

Qanun-e-Shahadat Order, 1984. In this application, it was stated that the appellant is
ready to take oath on the Holy. Qur'an in support of his claim and he should be allowed to
take the said oath and the respondents be called upon to take oath in rebuttal. We find that
the following statement was recorded and apparently it was made by the learned counsel
for the appellant:--
The case was adjourned to 28-9-1994 with the direction that the respondents should
appear in person. On the same date Munir Hussain, attorney of the respondents, gave a
statement that Muhammad Ali, Arif Hussain and Ali Ahmad have threatened the
respondents that in case they came to attend the Court, they will be abducted and
murdered. On 28-9-1994 the presence of the learned counsel for the parties was marked
and the copy of the application was delivered to the respondents. On 3-10-1994 the
respondents filed an application stating that they do not want to take oath on Holy Qur'an
and the case be decided on merits. On the same day the statement of the appellant was
recorded, who undertook that in case the respondent come to the Court, no harm will
come to them and in case some harm comes, it will be the responsibility of the appellant.
Thereafter Munir Hussain made a statement that he is a constable in Police Line No.1,
Multan and that he will bring the respondents at 11-00 a.m. on 5-10-1994. On 5-10-1994,
statement of Ali Ahmad was recorded on oath as well as solemn affirmation. He made a
detailed statement in line with the version contained in the plaint. The statement was
concluded as follows:
Page No. 2 of 4
Thereafter, the statement of respondents was recorded to the effect that they are ready to
take an oath on Holy Qur'an. Their thumb-impressions were obtained on the said
statement. Thereafter the joint statement of the respondents was recorded on Holy Qur'an
to the effect that they had not entered into an agreement with the appellant and that the
suit is false. The learned trial Court then proceeded to pass the impugned order and
decree dismissing the suit on 5-10-1994.
4. Learned counsel for the appellant contends that the learned Trial Court has erred both
in law as well as in fact while dismissing the suit.
According to the learned counsel this was a case of an oath under Art. 163 of
Qanun-e-Shahadat Order, 1984 and the suit could not have been dismissed for the reason
that both the parties had taken oath and this being so the learned trial Court was bound to
call upon the appellant to prove his case by producing evidence. He relies on the
following judgments in the cases of:--
(i) Khan Sher v. Mst. Kabla and another (PLD 1988 Peshawar 65)_
(ii) Bhore Khan v. Noor Din PLD 1993 Peshawar 72).
5. On the other hand, learned counsel for the respondents relies upon the case of
Muhammad Yousaf v. Bulanda through Legal Heirs (1999 SCMR 2115) to support the
impugned order and decree.
6. We have gone through the trial Court's record with the assistance of the learned
counsel for the parties. The proceedings that took place before the learned trial Court
have been reproduced above in detail. As stated by us, the process started on 22-9-1994
when the said application under Art. 163 of Qanun-e-Shahadat Order. 1984 was filed.
Somehow or the other, the learned counsel for the appellant made the statement, which
gives the impression that it was a case of special oath in terms of Oaths Act, 1873 as the
learned counsel stated that in case the respondents negate the case of the appellant on
Holy Qur'an, the suit be dismissed. It also appears that the attorney was reluctant and
took the plea that the respondents have been threatened with abduction and murder. Be
that as it may, on 28-9-1994 the copy of the application was delivered to the respondents,
who were called upon to file a reply. We are of the opinion that so far as the matter of
special oath, contained in the statement of the learned counsel for the appellant, is
concerned, apart from the fact that it was wholly inconsistent with the application filed by
the appellant, the matter came to an end on the same very date i.e. 22-9-1994 and that is
why on 28-9-1994 the copy of the application was delivered to the respondents. We have
already noted above that the respondents have prayed for the dismissal of the application
by stating that they are not prepared to take oath. On 5-10-1994 the appellant stated his
case in detail on oath as well as solemn affirmation and made a prayer that in case the
respondents deny his case as stated by him on the oath of Holy Qur'an, the suit be
decided in accordance with law. Now the respondents in their joint statement proceeded
to state that they did not enter into an agreement with the appellant and that the suit is
false. To our mind, this statement is not the one, which was contemplated in ire prayer
made in the application or in the statement made by the appellant on 5-10-1994. It may
be noted that the said statement starts with the mention of the fact that Dil Muhammad
was the attorney of respondent Munshi and that he alongwith respondent No.2 namely
Mubarak received Rs.5,000 as earnest money. Thereafter the other details follow point to
point. In our opinion, the said statement had to be put .to the respondents as stated above
Page No. 3 of 4
that they were to be called upon to deny the same on the oath of Holy Qur'an. This was
not done.
7. We also note with some regrets that in the impugned order, dated 5-10-1994, the
learned trial Court has mentioned that Ali Ahmad offered the respondents to negate his
version (wrongly mentioned in the impugned order as version of the defendant) on Holy
Qur'an and in case they denied the version the suit be dismissed. There is nothing to the
said effect in the statement dated 5-10-1994 wherein the appellant had stated that his suit
be decided in accordance with law.
8. Now the learned trial Court apparently made no effort to consider as to how the suit is
to be decided and which is the law according to which it is to be decided. To our mind,
the law of course is Article 163 of Qanun-e-Shahadat Order, 1984. For all purposes, this
was a case of general oath and not of special oath and both the parties have taken the
oath, "even if it be assumed that the oath was taken by the respondents in complete
accord with the offer of the appellant. This being so the learned trial Court was bound to
call upon the appellants to state as to whether he has some other evidence to offer in
support of his case and it would be only upon a statement that no other evidence is
available, then the suit could have been dismissed treating it to be a case of oath against
oath.
9. We do find that the judgments from the learned Peshawar High Court support the
contention of the learned counsel for the appellant. Inasmuch as the consequences of
refusal to take oath by the defendant or taking of oath by him would not necessarily result
in the decree or dismissal of the suit and that the case will have to be considered in the
given circumstances. We have also examined the judgment in the case of Muhammad
Yousaf (supra) being relied upon by the learned counsel for the respondents. However,
we find that in the said case what happened was that the plaintiff in the suit had taken
oath on Holy Qur'an. The defendant categorically stated that the plaintiff has made a
correct statement on oath and that he is not ready to take oath in rebuttal. It was in the
said circumstances that the suit was decreed and the judgment was upheld by the Hon'ble
Supreme Court of Pakistan. In the present case both the parties took oath and we do not
find denial of the entire version as stated in the statement of the appellant by the
respondents. Particularly in the background that it was a stated case of the appellant that
on behalf of one of the respondents his attorney has conducted the proceedings of sale
agreement and received the earnest money and there is no denial in the written statement
that the said person was not the attorney of the said respondent.
10. For all what has been discussed above, we find that there has been failure of justice
and that the appellant had not been given a chance to prove his case by producing other
evidence. This R.F.A. is accordingly allowed. The impugned order and decree of the
learned trial Court is set aside. The result would be that the suit filed by the appellant
shall be deemed to be pending before the learned trial Court. The record shall be remitted
back immediately. The learned trial Court shall summon the parties and proceed to decide
the suit after framing of issues and first giving an opportunity to the appellant to lead
evidence and then to the respondents to rebut the same. No order as to costs.
S.A.K./A-518/L Case remanded.
Page No. 4 of 4
2002 Y L R 1203
[Lahore]
Before Muhammad Farrukh Mahmud, J
MUHAMMAD RAFIQUE---Petitioner
Versus
THE STATE---Respondent
Criminal Miscellaneous No.410-B of 2002, decided on 19th March, 2002.
Criminal Procedure Code (V of 1898)--
----S. 497---Penal Code (XLV of 1860), Ss.506/387---Qanun-e-Shahadat (10 of 1984),

Art 163---Bail, grant of---Date of occurrence was not mentioned in F.I.R:--No
handwriting specimen of accused was taken and letter allegedly written by accused was
not sent to Handwriting Expert to ascertain whether same was written by accused or
not---No case was registered against accused previously---Trial Court while dismissing
bail application of accused was influenced by oath taken on Holy Qur'an by a
person---Such-like proceedings conducted by Trial Court were in clear violation of Art.
163 of Qanun-e-Shahadat, 1984 and dictum laid down by Supreme Court---None of the
offences against accused attracted prohibitory clause of S. 497, Cr. P.C. ---Accused was
admitted to bail, in circumstances.
Bashiran Bibi v. Nisar Ahmad and others PLD 1990 SC 83 ref.
Mian Jamal-ur-Rehman for Petitioner.
Muhammad Abdullah Bhatti for the Complainant.
Tariq Usman Joiya for the State.
ORDER
Muhammad Rafiq petitioner has sought his post-arrest bail in case F.I.R. No.3 registered
at Police Station Shaher Sultan on 4-1-2002 for offences under sections 506/387, P.P.C.
2. According to the F.I.R. the complainant received a letter written by the petitioner that
complainant should place Rs.1,00,000 on the roof of a telephone both otherwise he would
be murdered.
3. After his arrest the investigation against the petitioner has been completed and he is in
the judicial lock-up.
4. The learned counsel for the petitioner has argued that none of the offences attracts the
prohibitory clause of section 497, Cr.P.C. and that according to the school leaving
certificate the petitioner was less then 15 years of age on the date of occurrence. On the
other hand, the learned counsel for the complainant as well as the learned counsel
appearing on behalf of the State have vehemently opposed the grant of bail to the
petitioner and have argued that the petitioner was named in the F.I.R. and that he had
committed a heinous offence which is not an offence against an individual but an offence
against the society. It has also been argued that the petitioner had written a such like letter
earlier to one Mian Arshad Rasool. It is finally argued that the age of the petitioner,
according to the police record is about 24 years and, therefore, he cannot be termed as
juvenile.
5. I have heard the learned counsel for the parties and have also gone through the record
of the case. It has been noticed that the date of occurrence was not mentioned in the F.I.R.
Admittedly, no handwriting specimen of the petitioner was taken nor the letter written by
Page No. 1 of 2
the petitioner was sent to the Handwriting Expert to ascertain whether the same was
written by the petitioner or not. It has been admitted by the Police Officer present with
record in the Court that no case was registered against the petitioner previously. While
dismissing the bail application of the petitioner the learned Additional Sessions Judge
was influenced by the oath taken on Holy Qur'an by one Mian Arshad Rasool. Such-like
proceedings conducted by the learned Additional Sessions Judge in clear violation of
Article 163 of Qanun-e-Shahadat Order and the dictum laid down by the Honourable
Supreme Court of Pakistan in case of Bashiran Bibi v. Nisar Ahmad and others (PLD
1990 SC 83). None of the offences attracts the prohibitory clause of section 497, Cr.P.C.
6. For what has been discussed above I am inclined to admit the petitioner to bail subject
to his furnishing bail bond in the sum of Rs.50,000 (Rupees fifty thousand only) with one
surety in the like amount to the satisfaction of the trial Court.
H.B.T./M-1022/L Bail granted.
Page No. 2 of 2
2002 C L C 78
[Karachi]
Before Shabbir Ahmed, J
Messrs SHERANI BROTHERS---Appellant
versus
Mst. SARWAT AKHTAR and another---Respondents
First Rent Appeal No.630 of 2000, decided- on 4th October, 2000.
(a) Cantonments Rent Restriction Act (XI of 1963)---
----Ss. 17 & 24---Eviction of tenant---Denial of relationship of landlord and

tenant---Eviction application filed by landlady was resisted by appellant on the ground
that he was looking after the premises as attorney of his principal, who after purchasing
same from landlady through agreement to yell, rented it out to his brother--Rent
Controller Allowed the eviction application after holding her as landlady, respondent as
her tenant and appellant as sub-lettee---Contention was that in suit pending between the
parties, Civil Court had restrained appellant's eviction from premises except in due
process of law---Validity---Application for eviction was permissible under law, as such
judgment of Civil Court would not come in way of landlady for initiating proceedings as
provided under S.17 of Cantonments Rent Restriction Act, 1963---Rent Controller being
a Court of limited jurisdiction had no jurisdiction to determine the issue, whether
landlady had agreed to sell the premises to principal of appellant---Suit filed by principal
of appellant for specific performance of agreement to sell against landlady was dismissed
under O.XVII, R.3, C.P.C., which judgment was not further challenged in
appeal--Dismissal of such suit had falsified the plea taken by appellant that his principal
was the owner/landlord---Finding recorded by Rent Controller was sound, proper and
based on evidence on record---High Court dismissed appeal in circumstances.
Rehmatullah v. Nasir Khan and 7 others 1991 MLD 1011 and Malik Abdul Qayyum v.
Muhammad Hussain 1990 SCMR 1716 ref.
----Art. 163---Special oath---Court can decide the matter on special oath, provided both
the parties are agreeable---In absence of any such agreement, Court cannot force an
unwilling party for decision on special oath.
Umar Farooq Khan for Appellant.
Ahmed Pirzada for Respondents.
ORDER
Messrs Sherani Brothers through its partner, Waqar Sherani has filed the present appeal
under section 24 of the Cantonment Rent Restriction Act, 1963 (hereinafter referred to as
the Act), against the order, dated 10-4-2000 passed by learned Additional Controller of
Rent Clifton Cantonment, Karachi in R.C. No.74 of 1990 filed by the respondent No.1
against the respondent No.2 and the appellant, whereby Additional Rent Controller
allowed the ejectment application, in respect of the premises bearing No. II-C, 12th
Commercial Street, Phase-II Extension, Defence Housing. Authority, Karachi.
The facts in brief are that Mrs. Sarwat Akhtar (respondent No. 1) is the owner landlady of
the Plot No, 11-C, 12th Commercial Street, Phase 11 Extension with seven
shops/godowns in Pakistan Defence Officers Housing Authority, Karachi (hereinafter
Page No. 1 of 5
referred to it’s the premises), she rented the premises to the respondent.No.2 at the rate of
Rs.2,000 per month excluding electricity, gas and water consumption charges, payable in
advance in the first week of each month, under the tenancy agreement, dated 27-2-1984
for period of 11 months. The respondent No.2 remained in possession of the premises,
after the expiry of agreement and tendered the rent. He defaulted in payment of rent w.e.f.
July to September, 1987. Eviction proceeding was initiated by filing the Rent Case No.68
of 1987 before the Additional Controller of Rents, Clifton Cantonment, Karachi. The
matter was settled between the landlord and the tenant second another agreement of
tenancy was executed on 30-8-1987 with enhanced rate rent of Rs.3,000 per month with
further condition that respondent No.1 shall not sub-let the premises or any portion
thereof to any person under any circumstances. It was the case of the landlady that in the
year 1988, she left for Lahore to join her husband and remained there upto 14-9-1990.
The respondent No.2 paid the rent to her Rent Collector upto May, 1990, thereafter he
defaulted in payment of rent w.e.f. 1-6-1990. On return from Lahore, she alongwith her
brother, husband and in company of a friend, visited the premises but the same was found
to be in occupation of the appellant. The landlord came to know that respondent No.2 in
utter violation of the terms and conditions of the agreement and without consent in
writing of the landlord has subject the premises to the appellant. The eviction was sought
through an application under section 17 of the Act, on the grounds of default as well as
sub-letting without her written consent.
The respondent No.2 in spite of service failed to contest the ac eviction application. The
appellant in his written statement admitted that, Mrs. Sarwat Akhtar was the owner of the
premises with construction thereon upto 14-7-1984, who agreed to sell the premises to
one Mrs. Qamar Jamal Khan by agreement, dated 14-7-1984 for Rs.1,25,000 and after
receiving the full consideration, handed over the vacant and peaceful possession to the
said purchaser alongwith original papers in part performance of the contract. On
1-10-1986. Mrs. Qamar Jamal executed tenancy agreement in favour of Nisar Ahmed
Sherani, the younger brother of the appellant, letting out the entire ground floor to him at
the rent of Rs.1,700 per month with Rs.20,000 as security deposit. In pursuance of the
tenancy agreement, Nisar Ahmed Sherani came in occupation of the entire floor as a
tenant of purchaser Qamar Jamal w.e.f. 1-10-1987 and started business and started
business in the name of Sherani Brothers alongwith his brother Waqar Ahmed Sherani
(the appellant). It was further pleaded that Nisar Ahmed Sherani filed Civil Suit No. 1663
of 1987 in the Court of Vth Civil Judge, Karachi South against Qamar Jamal and Mrs.
Sarwat Akhtar. Mrs. Qamar Jamal is permanently settled in U.S.A., the appellant as
attorney of said Qamar Jamal, is looking after the property. Mrs. Sarwat Akhtar has no
right to evict the appellant and has falsely tried to introduce Sher Zameen Khan as her
tenant to justify that the case of unauthorized subletting by him to the appellant. He has
denied all the averments of the application and maintained that all the proceedings
between Mrs. Sarwat Akhtar and Sher Zameen Khan were collusive.
After dismissing the application for framing of preliminary issue with regard to the
relationship of landlord and tenant between the parties, the learned Rent Controller
allowed the eviction application by order, dated 5-11-1991, which was appealed through
First Rent Appeal No.709 of 1991. By order, dated 17-8-1998, the appeal was disposed of
in terms of following order:--
"The case is remanded to the learned Rent Controller, Clifton Cantonment, who is hereby
directed to frame a preliminary issue regarding the existence or non-existence of
relationship of landlord and tenant between the parties. Based on determination, of the
issue .further proceedings would be undertaken by the learned Rent Controller, if any.
The learned Rent Controller is further directed to comply with the directions on
determination of relationship between the parties within a period of two months from the
date of receipt of this order."
After the remand affidavit-in-evidence of Akhtar Ali Khan, the husband and attorney of
the landlord was filed with numerous documents, whereas, the appellant filed his
affidavit-in-evidence with numerous documents, both were subjected to the
cross-examination. The learned Rent Controller framed the following, issues:--
Page No. 2 of 5
"(1) Whether there is any relationship of landlord and tenant between the applicant and
opponent No.2?
(2) Whether the opponent No.1 was the original tenant of the applicant?
(3) Whether the opponent No. 2 is the subletee of the opponent No.1?
(4) Whether the opponent No.2 is entitled to pay the rent of the subject tenement?
(5) Whether the opponent No.2 has committed wilful default in payment of rent?
(6) Whether the applicant is entitled for any relief claimed in ejectment application?
(7) Whether Mrs. Qamar Jamal executed a tenancy agreement, dated 1-10-1988 in favour
of Nisar Ahmed Sherani, the younger brother of Viqar Ahmed Sherani, letting out the
entire ground of the premises in question?
(8) Whether on 15-9-1987, the said Nisar Ahmed Sherani filed Case No. 1663 of 1987 :r
the Court of Vth Civil Judge, Karachi, South against the said purchaser Mrs. Qamar
Jarnal as defendant No.1 and present applicant as defendant No.2 for permanent
injunction?
(9) Whether the applicant and the opponent No.1 in connivance with each other filed
Rent Case No.68 of 1987 and Case No. 1585 of 1987 in order to frustrate the lawful
possession of the opponent No.2 in premises in question?
(10) What should the order be?"
After evaluating the evidence and material placed learned Rent Controller recorded the
finding that the respondent No.1 is the landlord and respondent No.2 is her tenant and the
appellant sub-lettee. The remaining issues were also decided against the appellant,
resultantly, the eviction application was allowed- by the impugned order. Hence the
present appeal.
I have heard Mr. Umar Farooq Khan, learned counsel for the appellant and Mr. Ahmed
Pirzada, learned counsel for the respondents.
Mr. Umar Farooq Khan has vehemently contended that the learned Rent Controller has
erred in treating the respondent No.1 as owner/landlord and respondent No.2 as her
tenant. He further contended that the eviction order was passed in utter disregard of the
judgment, dated 28-9-1989 in Suit No. 1663 of 1987, filed by Nisar Ahmed Sheram
against the respondent No.1 and Qamar Jamal, whereby the respondent and said Qamar
Jamal was restrained from evicting the appellant except in due process of law.
In my view, the application for eviction is permissible under the law, as such, the
judgment referred to above by the learned counsel for the appellant would not come in
the way of the respondent for initiating proceedings for eviction, as provided under
section 17 of the Act.
Mr. Umar Farooq Khan has also vehemently contended that the respondent No.1 has
parted with the possession under the agreement of sale with Qamar Jamal on 14-7-1984
and has received the full amount of Rs.1,25,000 in terms of Exh.0/1 and the appellant's
brother was inducted as tenant. He further contended that the learned Rent Controller has
rejected the application of the appellant for decision on special oath in terms, that they
have not received the sale consideration from said Qamar Jamal. He further contended
that even the signature on EXh.A/1was not verified by the learned Rent Controller in
order to arrive at a finding if the same was issued by the respondent No.1 in receipt of the
amount.
The respondents' counsel met this contention by maintaining that the refusal by the
respondents to take oath on plaintiff's demand has no penal consequences and the Court
Page No. 3 of 5
could not be precluded from deciding the case on merit. In support of his contentions, he
referred the case of Rehmatullah v. Nasir Khan and 7 others 1991 MLD 1011.
In my view, the Court can decide the matter on special oath provided both parties are
agreeable. In absence of an agreement for decision on special oath, the Court cannot force
an unwilling party for decision of special oath, as such this plea has no force.
Secondly the learned Rent Controller was not supposed to determine the issue whether
respondents had agreed to sell the property to Qamar Jamal, the Controller having limited
jurisdiction. In my view, once the fate of alleged sale agreement stand sealed by order,
dated 22-12-1998 of IIIrd Senior Civil Judge, Karachi, South, in Suit No.1384 of 1991,
filed by Qamar Jamal Khan against respondent Mrs. Sarwat Akhtar and D.H.A. for
specific performance of contract, whereby the suit was dismissed under the provision of
Order 17, rule 3, C.P.C., the same cannot be agitated before a forum of limited
jurisdiction. No restoration application was filed, appeal has not been preferred as
maintained by the respondents' counsel. This fact has not been controverted by the
counsel for the appellant. Thus, the plea that said Mrs. Qamar Jamal Khan is landlady and
owner by agreement of sale and she inducted brother of the appellant, Nisar Ahmed
Sherani is also not available to the appellant. The learned Rent Controller has concluded
that the respondent Mrs. Sarwat Akhtar is the landlord and Gul Zameen Khan is the
tenant and the appellant a sub-lettee.
In my view, the finding recorded by the learned Rent Controller is sound proper and
based on the evidence brought on record, particularly the following facts:--
(1) The proceedings of Suit No. 1585 of 1987 in the Court of XIIIth Civil Judge, Karachi
South filed by the respondent No. 2 against the respondent No.1 for injunction (Annexure
"A/4").
(2) Tenancy agreement, dated 27-2-1984 and 30-8-1987 between the respondent No.1 and
respondent No.2.
(3) Rent Case No.68 of 1987 filed respondent No.1 against respondent No. 2(c).
(4) The plea taken by the appellant in Suit No. 1665 of 1987 was that they were inducted
as tenant in 1983 by Qamar Jamal much before the alleged agreement of sale in her
favour, whereas in rent proceedings, a different plea was that, taken Mrs. Qamar Jamal
Khan inducted her brother Nisar Ahmed Sherani as tenant on 1-10-1986. The induction of
the appellant's brother as tenant by Mrs. Qamar Jamal in the year 1983 much before the
alleged agreement of sale is not considerable.
The learned counsel for the respondent has supported the impugned order and maintained
that the appellant has denied the relationship of landlord and tenant between the
respondents and claimed himself to be a tenant under third person vie. Qamar Jamal,
therefore, onus shifts on him to prove that he was the tenant of third person and who was
his landlord. Qamar Jamal has not appeared in the witness-box to prove herself as
owner/landlord. Her suit for specific performance of contract stand dismissed on 22-12-
1998. The appellant failed to discharge the burden, therefore, the appellant cannot be
allowed to defeat the right of respondent No.1 without proving the title of said Qamar
Jamal and referred the observations of Abdul Qader Choudhry (as he then was) in Malik
Abdul Qayyum v. Muhammad Hussain 1990 SCMR 1716 in the following words:
'That onus continues to shift in civil matters i.e. the relationship of landlord and tenant
having been denied by respondent No.1 saying that he was tenant under one Kabul son of
Fateh Khan, the onus, therefore, shifted to him and it was for him to prove that Kabul
Khan was his landlord. Neither Kabul Khan entered the witness-box, although he was
present during the proceedings, nor any step was taken by the respondent to produce
Kabul Khan; that respondent No.1 did not himself claim the title of the property, but
asserted that it belonged to a third person, therefore, he could not defeat the petitioner's
right without proving the title of the property in the other person."
Page No. 4 of 5
The plea that Qamar Jamal is the owner/landlord, who inducted the brother of the
appellant as tenant has not been established, on the contrary, the dismissal of her suit
falsified the stand taken by the appellant.
The upshot of the above discussion is that the appeal has no merits and the same is
dismissed in limine with listed application.
These are the reasons of short order announced on 4-10-2000.
S.A.K./S-148/K Appeal dismissed.
Page No. 5 of 5
2002 C L C 1396
[Lahore]
Before Farrukh Lateef, J
MUHAMMAD JAVED IQBAL---Petitioner
Versus
Mst. TAHIRA NAHEED and others---Respondents
Writ Petition No.5556 of 2001, decided on 10th April, 2002.
(a) West-Pakistan Family Courts Act (XXXV of 1964) ---
----S. 5 & Sched.---Qanun-e-Shahadat (10 of 1984), Art.113--Constitution of Pakistan

(1973), Art.199---Constitutional petition---Suit for recovery of dowery articles Document
exhibited without objection--List of ,articles was annexed with the plaint and it was in the
notice of the defendant right from the inception which was not only the basis of the suit
but was mentioned in the plaint and the same was exhibited by the Family Court without
any objection from the defendant---Suit was decreed by the Family Court in favour of the
plaintiff as per the list and the judgment and decree was maintained by the Appellate
Court--Contention of the defendant was that the list of the articles was not proved hence
the judgments and decrees passed by the Courts below were liable to be set
aside---Validity---List was exhibited without objection from the defendant and the same
was in the knowledge of the defendant right from the inception of proceedings---Such
document could not be objected to in the proceedings under Art.199 of the
Constitution--Both the Courts below had neither exceeded their jurisdiction nor acted
without jurisdiction---Family Court had examined/assessed the evidence and its findings
were based on evidence---High Court in exercise of jurisdiction under Art. 199 of the
Constitution declined to interfere with the findings recorded by the Family
Court---Constitutional petition was dismissed in circumstances.
(b) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 17---Civil Procedure Code(V of 1908), Preamble--- Qanun-e-Shahadat (10 of

1984), Preamble---Proceedings before Family Court--provisions of Civil Procedure Code,
1908, and Qanun-e-Shahadat, 1984---Applicability---Said provisions do not apply to
proceedings before Family Court.
(c) West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.--- Dowery articles---Value---Determination---Family Court decreed

the- suit for recovery of articles according to the list annexed with the plaint but did not
determine the value, of the articles--Validity---List contained particulars of each and
every item of the dowery, therefore, the list could be executed to the extent of the articles
specified therein---If evidence as regard the value of the articles was not available on
record, no illegality was committed by the Family Court in not determining the value of
the articles.
(d) Qanun-e-Shahadat (10 of 1984)---
----Art. 163---West Pakistan Family Courts Act (XXXV of 1964), S.5 &
Sched.---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Special
oath, non-taking of---Suit for recovery of dowery articles was decided in favour of the
plaintiff on the basis of evidence as the defendant was unwilling to decide the matter on
special oath--Validity---Judgment passed by the Family Court was returned on the basis
of evidence after correct appraisal and the finding was not based on any adverse
presumption against the defendant for his unwillingness to decide the matter in issue on
special oath under Art.163 of Qanun-e-Shahadat, 1984---High Court declined to interfere
with the .judgment passed by the Family Court in circumstances.
Page No. 1 of 4
(e) West Pakistan Family Courts Act (XXXV of 1964)---
---S. 18---Appearance through agent---Non-appearance of plaintiff in witness-box-

Defendant raised an objection that the plaintiff did not appear herself in the suit but had
produced her father as special attorney in the Family Court---Validity---Appearance
through agent was legally permissible under S.18 of West Pakistan Family Courts Act,
1964--Family Court had rightly not drawn adverse inference due to nonappearance of the
plaintiff in the witness-box in support of her claim.
(f) Constitution of Pakistan (1973)---
----Art. 199---West Pakistan Family Courts Act (XXXV of 1964), S.14--Constitutional

petition---New plea---Petitioner raised a plea which was not raised before the Appellate
Court---Effect---Ground not agitated before the Appellate Court could not be raised in the
Constitutional petition.
Muhammad Naveed Hashmi for Petitioner.
Islam Ali Qureshi for Respondents
Date of hearing: 27th March, 2002
JUDGMENT
Brief facts necessary for the disposal of this Constitutional petition are that on 27-4-1998
Mst. Tahira Naheed (respondent No.1) instituted a suit, against her husband (writ
petitioner) for recovery of articles of her dowry in accordance with the list annexed with
the plaint. It was alleged by her that about 1-1/2 months prior to the filing of the suit, the
writ petitioner had turned her out of his house and has refused to return her dowry.
2. The suit was contested by the writ petitioner. He alleged in his written statement that at
the time of marriage, articles of dowry were not shifted to his house and they remained
lying in the house of the parents of respondent No.1 at Khanewal because they wanted
the couple to shift at Khanewal. In March, 1998 respondent No. 1 went to the house of
her parents and while going away took along-with her writ petitioner's property
comprising clothes, jwellary and prize bonds worth Rs.10,000. Set off to the extent of
Rs.75,000 by way of value of the said articles was claimed. It was also alleged that
during the .subsistence of marriage, respondent No. 1 could not legally claim dowry.
Legal objections regarding valuation of the suit and jurisdiction were also raised.
3. It may be observed that besides the suit for dowry respondent. No. 1 had also filed two
suits for maintenance allowance for herself and for the minor children and the writ
petitioner had instituted a suit for restitution of conjugal rights against respondent No. 1.
All the said four suits were consolidated and were disposed of by the Family Court vide
consolidated judgment, dated 31-5-2000.
4. The writ petitioner filed four separate appeals against the aforesaid consolidated
judgment and separate decrees of the Family Court. For the purpose of this Constitutional
petition, consolidated judgment of the Family Court, dated 31-5-2000 and order of the
District Judge passed on 10-10-2000 are relevant whereby he dismissed the writ
petitioner's appeal against the judgment of the Family Court whereby suit for dowry was
decreed.
5. Mr. Naveed Hashmi, Advocate appearing on behalf of the writ petitioner has assailed
the aforesaid judgment of the Family Court and the order passed in appeal by the District
Judge on the following grounds:--
(i) That the impugned judgment and order were passed without lawful authority and
are against law and facts;
Page No. 2 of 4
(ii) List of articles of dowry Exh.P.2 was not proved according to the provisions of the
Qanun-e-Shahadat Order by producing scribe and the witnesses of the said
document, it was, therefore, not admissible in evidence;
(iii) In the decree sheet of the trial Court amount regarding value of dowry is not
mentioned. The suit could not have been decreed without mentioning specific
amount as the value of the articles of dowry;
(iv) Under Article 163 of the Qanun-e-Shahadat Order no adverse presumption could
be drawn if the party refused to take oath;
(v) Evidence was misread and not read by .both the Courts below;
(vi) Respondent No.1 did not appear in the witness-box in support of her claim hence
adverse presumption should have been drawn that her claim was false; and that
(vii) Both Courts below overlooked the ground of set off taken up by the writ
petitioner in his written statement.
6. The writ petition was opposed at the limine stage by Mr. Islam Ali Qureshi, Advocate
who had appeared on behalf of respondent No.1. arguments were heard and the certified
copies of the relevant record annexed with the writ petition had also been perused.
7. Adverting to the first ground raised by Mr. Naveed Hashmi, Advocate, it may be
observed that under section 14 of the West Pakistan Family Courts Act, 1964, decision
given or decree passed by Family Court is appeal-able to the District Judge where the
Family Court is not presided by District Judge or Additional District Judge. In the present
case, the impugned decree was passed by Family Court presided over by the Senior Civil
Judge. Both the Courts below, therefore, had lawful authority to pass' the judgment and
order respectively which are assailed in this writ petition.
8. Referring to the above second ground of Mr. Naveed Hashmi, Advocate it may be
observed that document Exh. P.2 was exhibited by the Family Court without any
objection from the other side. Writ petitioner had the notice of the said document right
from the inception. The said document was not only the basis of the suit but was
mentioned in the plaint and was also annexed therewith. It could not be, therefore
objected to in the writ proceedings. Apart from that under section 17 of the West Pakistan
Family Court Act; 1964, provisions of Qanun-e-Shahadat and the C.P.C. do not apply to
proceedings before any Family Court.
9. Referring to the 3rd ground raised by Mr. Naveed Hashmi, Advocate it may be
observed that respondent (plaintiff) had claimed specific articles which on the occasion of
marriage were given to her according to the list Exh.P.2. This list contains particulars of
each and every item of the dowry. Decree for recovery of articles of dowry according to
the said list can be executed to the extent of the articles C specified therein. No illegality
was committed by the Family Court in not determining the value of the articles as
evidence in that regard was not available on record.
10. Referring to the 4th ground taken by Mr. Naveed Hashmi, Advocate, it may be
observed that Issue No.4 was to the effect whether plaintiff (respondent No.1) is entitled
to recover dowry articles or in alternate price thereof from the defendant. A perusal of the
impugned judgment of the Family Court shows that finding on the said issue was
returned on the basis of evidence after correct appraisal and the said finding was not
based on any adverse presumption against the writ petitioner for his unwillingness to
decide the matter in issue on special oath under Article 163 of Qanun-e-Shahadat Order.
11. Reverting to the 5th ground, the petitioner's counsel had failed to point out as to which
portion of evidence was not read or what piece of evidence was misread by the Family
Court. Adverting to the 6th ground taken up by Mr. Naveed Hashmi, Advocate, it may be
observed that section 18 of the West Pakistan Family Courts Act, 1964 invests the Court
with power to dispense with legal requirement in relation to appearance by any person
and to allow that person to be represented through an authorized agent. In the present
Page No. 3 of 4
case, the Family Court had recorded the statement of Mian Abdul Ghaffar father of the
plaintiff who was also her special attorney and was fully conversant with the relevant
facts of the case. Since appearance of agent was legally permissible hence adverse
inference was rightly not drawn by the Family Court due to non-appearance of the
plaintiff (respondent No. 1) in the witness-box, in support of her claim.
12. Adverting to the last ground, it may be observed that the writ petitioner did not take
up this ground in the memo. and grounds of his appeal filed before the District Judge that
the Family Court had overlooked plea of set off taken by him in the written statement.
Ground F which was not agitated before the Lower Appellate Court cannot be raised in
the writ petition.
13. A perusal of the impugned judgment passed by the Family Court on 31-5-2000 and
impugned order passed in appeal by the District Judge,, dated 10-10-2000 reveals that
both the Courts below had neither exceeded their jurisdiction nor acted without
jurisdiction. The Family Court had examined/assessed evidence and its findings are based
on evidence; against such findings Constitutional jurisdiction cannot be exercised.
For the reasons stated above, the writ petition is devoid of any force, and is accordingly
dismissed.
Q.M.H./M.A.K./M-1264/L Petition dismissed.
Page No. 4 of 4
2002 S C M R 675
[Supreme Court of Pakistan]
Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif and Munir A. Sheikh, JJ
SALIM PERVAIZ---Petitioner
Versus
HUSSAIN BANG---Respondent
Civil Petition for Leave to Appeal No. 115-K of 2001, decided on 30th July, 2001.
(On appeal from the judgment dated 18-1-2001 of the High Court of Sindh, Karachi
passed in F.R.A. No.805/2000).
Sindh Rented Premises Ordinance (XVII of 1979)---
---S. 15(2)(ii)(iv)---Qanun-e-Shahadat (10 of 1984), Art. 163---Constitution of Pakistan

(1973), Art. 185(3)---Default in payment of rent---Impairing value and utility of rented
premises and creating nuisance---Rent Controller on the basis of evidence on record
found all the issues in negative and dismissed the rent application filed by
petitioner---First appeal filed against such judgment was also dismissed by High
Court---Contention of petitioner was that special oath, on the basis of which Rent
Controller had decided the issue of default, was not accepted by him, thus, provisions of
Art. 163 of Qanune-e-Shahadat, 1984 had been violated--Validity---No serious
misreading and/or disregard of any material piece of evidence on word was found---High
Court had rightly found that Runt Controller had not solely relied on special oath, but had
also relied upon other evidence brought on record---Impugned judgment was based on
proper appraisal of evidence on record---Supreme Court declined to grant leave to appeal.
M. Muzaffarul Haq, Advocate Supreme Court and Faizanul Haq, Advocate-on-Record for
Petitioner.
Nemo for Respondent.
Date of hearing: 30th July, 2001.
JUDGMENT
IRSHAD HASAN KHAN, C.J.---The petitioner seeks leave to appeal against the
judgment dated 18-1-2001 of the High Court of Sindh, Karachi whereby the first rent
appeal filed by him was dismissed with costs.
2. The petitioner rented out his Flat No.7 on Plot No.G-2/119, Thatai Compound, Karachi
to the respondent at a monthly rent of Rs.300 per month. He filed Rent Application
No.647 of 1998 in the Court of VIIth Senior Civil Judge/Rent Controller, Karachi seeking
eviction of the respondent on the ground of default in payment of rent since July, 1997,
impairing the value and utility of the premises in question and creating nuisance. The
respondent contested the application. The learned Rent Controller, after recording
evidence and hearing the arguments of the parties, found all the issues in the negative and
dismissed the rent application vide order dated- 28-4-2000. The first rent Appeal filed by
the petitioner was dismissed vide the impugned judgment.
3. The sole contention before the High Court was that the Rent Controller decided the
case on the basis of special oath with respect to the issue of default, which had not been
accepted by the petitioner, thus the provisions of Article 163 of the Qanoon-e-Shahadat
Order, 1984 were violated.
4. After hearing Mr. Muhammad Muzaffarul Haq, learned Advocate Supreme Court for
the petitioner at some length and perusing the material available on record, we find that
Page No. 1 of 2
the High Court was right in holding that the Rent Controller had not solely relied on the
special oath but had also relied upon other evidence brought on record. We do not find
any serious misreading and/or disregard of any material piece of evidence on record. The
impugned judgment is based on proper appraisal of evidence on record.
5. Resultantly, the petition is dismissed and leave declined.
S.A.K./S-156/S Leave refused.
Page No. 2 of 2
P L D 2002 Supreme Court 261
Present: Iftikhar Muhammad Chaudhry and Abdul Hameed Dogar, JJ
MUHAMMAD IDREES---Petitioner
Versus
TAJAMMAL HUSSAIN and others---Respondents
Civil Petition No.777 of 2000, decided on 1st November, 2001.
(On appeal from the judgment/order dated 1-5-2000 passed by Lahore High Court,
Lahore in R.S.A. No.49 of 1978).
Oaths Act (X of 1873)-----
----Ss. 9, 10 & 12---Qanun-e-Shahadat (10 of 1984), Art.163---Civil Procedure Code (V

of 1908), O. XXIII, R. 3---Constitution of Pakistan (1973.), Art. 185(3)---Decision of suit
on Special Oath---Applicability of Rule of Caution---Defendant's offer for decision of
suit on Oath of plaintiffs' father was accepted by plaintiffs and their father appeared in the
Court for making statement on oath, butt before his statement could be recorded,
defendant made application mentioning therein reasons to resile from his offer---Trial
Court did not consider the application and on recording statement of plaintiffs' father
decreed the suit---Defendant's first and second appeals were dismissed---Defendant's
contention was that Trial Court was bound to examine the reasons mentioned in
application and decide same before administering oath by applying the Rule of
Caution---Supreme Court granted leave to appeal to consider the contention which
involved question of public importance with regard to interpretation of Ss.9, 10 & 12 of
Oaths Act, 1873 as well as Art. 163 of Qanun-e-Shahadat, 1984 and the application of
Rule of Caution by the Courts seized with the matter in such-like cases.
PLD 1970 SC 241; PLD 1970 SC 331, 1974 SCMR 224; 1981 SCMR 162; PLD 1990 SC
841; 1995 SCMR 795; PLD 1990 SC 237 and PLD 1997 SC 823 ref.
Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and M.S. Khattak,
Advocate-on-Record for Petitioner.
M. Anwar Bhinder, Senior Advocate Supreme Court and Ch.Mehdi Khan Mehtab.
Advocate-on-Record (absent) for Respondents.
Date of hearing: 1st November, 2001.
ORDER
IFTIKHAR MUHAMMAD CHAUDHRY, J.----Petitioner seeks leave to appeal

against the judgment dated 1st May, 2000 passed by Lahore High Court, Lahore in
R.S.A. No.49/2000.
2. Briefly stating the facts of the case are that respondents filed a suit on 24th March,
1992 against petitioner for possession through their superior right of pre-emption in
respect of the property which he has purchased by means of registered sale-deed dated
28th November, 1991. The suit was contested by the petitioner, however, on 8th
September, 1997 respondent made offer for decision of the suit on oath, if given to
Muhammad Latif, father of respondents Nos. l and 2. Petitioner accepted their offer as
such the case was adjourned for 25th September, 1997 for recording of the statement of
Muhammad Latif. On the said date Muhammad Latif appeared and showed his
willingness for making the statement of oath on Holy Qur'an but before his statement
could be recorded, petitioner filed an application mentioning therein reasons to resile
from the acceptance of the offer of giving oath to Muhammad Latif. Learned Trial Judge,
however did not consider this application and on recording his statement decreed the suit
against the petitioner and in favour of the respondent vide judgment dated 1 st July, 1998.
Page No. 1 of 2
Feeling dissatisfied from the judgment/decree of the trial Court petitioner preferred
R.F.A. and R.S.A. before the District Judge, Gujranwala_ and Lahore High Court but
both were dismissed on 25th April, 2000 and 1st May, 2000, respectively. As such instant
petition for leave to appeal has been filed.
3. Learned counsel for the petitioner contended that in view of the fact that petitioner has
withdrawn offer before recording the statement of Muhammad Latif on oath, therefore,
the trial Court was bound to decide this application before administering the oath by
applying the Rule of Caution and should have examined the reasons mentioned in the
application filed by the petitioner to withdraw acceptance of offer of recording of the
statement of Muhammad Latif. According to him strong reasons exist in favour of
petitioner to convince the Court that respondent have made offer to petitioner/plaintiff for
getting recorded the statement of Muhammad Latif on oath. Firstly because Muhammad
Latif is the father of respondents Nos. l and 2 and former was persuaded by them to make
statement in their favour and no sooner this fact came into the notice of the petitioner, he
approached the Court with written request that he intends to withdraw his acceptance of
offer of respondent for decision of the case on the statement on oath of Muhammad Latif.
In support of his contention reliance was placed by him on P L D 1970 SC 241, 331, 1974
SCMR 224, 1981 SCMR 162, PLD 1990 SC 841, 1995 SCMR -795, PLD 1990 SC 237
and PLD 1997 SC 823.
4. On the other hand learned counsel for caveator stated that the petitioner had no lawful
authority to back out from his acceptance which he has given in response to the offer
made by respondent for the decision of the suit on statement of Muhammad Latif for
recording his statement on special oath. He further stated that all the Courts below have
recorded concurrent findings of fact, which are not open to any exception because of the
fact that no-point of public importance is involved in instant case.
5. We have heard the learned counsel for the parties and have also cone through the
available record as well as the judgments cited on behalf of the petitioner at the bar. In
our opinion the contention raised by the learned counsel for the petitioner involves
question of public importance with regard to interpretation of sections 9, 10, 12 of the
Oaths Act as well as Article 163 on the Qanun-e- Shahadat Order and the application of
Rule of Caution by the Courts seized with the matters in such-like cases.
Therefore, leave to appeal is granted to consider the above aspect of the case.
Civil Miscellaneous Application No. 383/2000.--Status quo is directed to be maintained

by the parties during the pendency of the appeal, arising out of instant petition.
S.A.K./M-317/S Appeal granted.
Page No. 2 of 2
2000 P L C 468
[Karachi High Court]
Before Dr. Ghous Muhammad and Mushir Alam, JJ
Messrs PEOPLE FISHERIES (PVT.) LIMITED through Managing Director
versus
SINDH LABOUR APPELLATE TRIBUNAL, KARACHI and 3 others
Constitutional Petition No. D-480 of 1998, heard on 4th June, 1999.
Industrial Relations Ordinance (XXIII of 1969)---
----Ss.25-A & 37(3)---Qanun-e-Shahadat (10 of 1984), Art.163---Oaths Act (X of 1873),

Ss.7 & 8---Constitutional _ petition---Grievance petition--Dismissal of the petition on
special oath---Employee in his grievance petition had sought reinstatement in service
with back benefits---Employee had himself offered that he would give-up his grievance
petition if employer denied the fact in issue by special oath---Employer having taken oath
on offer of employee, grievance petition was dismissed by Labour Court accordingly, but
Labour Appellate Tribunal set aside order of Labour Court and remanded case to be
decided on merits---Validity---Once employee had himself agreed to mode of decision
before Labour Court, decision of Labour Court was unquestionable and employee was
estopped to challenge the same before Labour Appellate Tribunal---Once offer made by a
party was accepted by another, then party making an offer could not be allowed to resile
from the offer as same amounted to binding contract---Labour Court, in circumstances,
was justified to decide matter on oath and Labour Appellate Tribunal was not right to
reverse decision of Labour Court---Order of Labour Appellate Tribunal, was set aside by
High Court in Constitutional petition.
1981 SCMR 162 and 1974 SCMR 224 ref.
Farooq Hashim for Petitioner.
Asstt. A.-G. for Respondent.
JUDGMENT
MUSHIR ALAM, J.---Through instant petition the petitioner has impugned decision of
the Sindh Labour Appellate Tribunal (hereinafter referred to as 'SLAT') in Appeal No.
KAR 240 of 1997 dated 4-3-1998 whereby, appeal filed by respondent No.4 Duria Aman,
was allowed and case was remanded to the Labour Court No.II for proceeding on merits.
2. Brief facts leading to this petition are that the respondent No.4 filed a grievance
petition under section 25-A of I.R.O. 1969, against the petitioner seeking reinstatement in
service with back benefits.
3. Before the learned Labour Court, the respondent No.4 besides himself examined two
witnesses in support of his case and closed his side on 18-9-1989- thereafter the petitioner
filed the affidavits of three witnesses in rebuttal. But the re8pondent No.4 instead of
cross-examining the petitioner's witnesses, sought adjournment on various pretexts and
ultimately after his side was closed, filed an application dated 29-7-1997 before the
learned Labour Court to decide the entire matter on special oath. Application reads as
follows:
"It is prayed that this Honourable Court may be pleased to administer the special
oath to the above respondent as under:
Page No. 1 of 3
'Was Mr. Abdul Karim Mongrio ever employer as Accountant in the respondent
establishment.'
In view of the above I give up my grievance petition if the answer is in the negative.
In the interest of justice, above prayer may kindly be granted."
4. The petitioner herein accepted the said offer, consequently the special oath was
administered to Syed Muhammad Iftikhar the Managing Director of the petitioner as
prayed by the respondent No.4 and the learned trial Court passed the orders dated
30-9-1997 which reads as follows:
"Applicant's representative Mr. A.D. Cruze, respondents' M.D. Syed Muhammad

Iftikhar Zaidi and his counsel present. Oath administered on Holy Qur'an and he
stated on oath that Abdul Karim Magrani was our employee but he was not
Accountant in respondent Company.
Mr. A.D. Cruze earlier submitted application that applicant was administered poison to
prevent his attention in Court. M.C. was submitted on last date and copy annexed from
the Court is proceeding with the matter hence he withdraws his power and asks the Court
to send notice to the applicant.
Application for adjournment moved on 22-9-1997 was rejected by my order of that day
and there was no mention of any poison in the said application and M.C. of which copy if
again produced today these are the two M.Cs. of 19-9-1997 i.e. one produced on
20-9-1997 with adjournment application which was allowed and the one produced with
adjournment application of 22-9-1997 and again today. Both certificates are different. As
regards notice to the applicant withdrawal of Vakalatnama. The law is to the contrary that
notice is to be served by the counsel himself and not by the Court and there is no
provision in the LR.O.
In the result the main petition under section 25-A; I.R.O. stands dismissed."
5. It appears that respondent No.4 being aggrieved by above referred order filed appeal
before the learned Sindh Labour Appellate Tribunal.
6. The learned Sindh Labour Appellate Tribunal allowed the appeal and remanded the
case to the Labour Court No.II, the learned Labour Appellate Tribunal held:
"After hearing both the learned counsel. I have come to the conclusion that there
was no provision that party should be compelled to take oath and. if he declines to
do so, adverse order be passed against him.
Under the circumstances the present appeal is allowed end the impugned order
dated 30-9-1997 passed by the learned Lower Court is hereby set aside. The
matter is remanded to the Labour Court No.11 for proceeding on merits."
7. The record shows that the respondent No.4 was served through publication effected in
daily Jang dated 12-12-1998 but he chose to remain absent and did not contest the
petition.
8. Mr. Farooq Hashim, learned counsel for the petitioner argued that the petitioner was
administered special oath on the offer in writing made by the respondent No.4 to the
Labour Court and matter was adjourned to 30-9-1997, 5-9-1997, 30-8-1997, 4-9-1997,
20-9-1997, 22-9-1997 and 30-9-1997 and on each date the respondent No.4, on one or the
other pretext, chose to remain absent under the compelling circumstances the trial Court
was justified to administer special oath to the petitioner in terms offered by the
respondent No.4 in writing and decided the case vide order dated 3-9-1997, reproduced
above.
Page No. 2 of 3
It was further urged that once the respondent Na.4 offered oath to the petitioner which
was accepted and oath was taken on Holy Qur'an and matter was decided accordingly.
The learned SLAT erred both in law and facts reversing the orders of trial Court.
10. We have heard the learned counsel for the petitioner, respondent No.4 though served
as per record through publication in daily Jang dated 12-12-1998 but chose to remain
absent. Mr. Ainuddin Khan, learned Additional Advocate-General on Court notice
Perused the impugned order and record.:
11. From the facts given above, it can be seen that the respondent No.4 voluntarily made
an offer to the petitioner to take special oath which offer was readily accepted. Learned
SLAT held that "there was no provision that party should be compelled to take oath and if
he declines to do so adverse order be passed against him. Such finding cannot be
sustained, firstly the respondent No.4 had voluntarily given in writing that if the
petitioner answers the questions posed by him in negative, he would give up his
grievance petition. It was on the basis of the oath taken by the petitioner who gave
answer in negative, the grievance petition was dismissed vide order reproduced in para. 4
above, by the learned labour Court. Secondly, that Oath Act, 1873 does not prescribe any
particular form or procedure for deciding the matter on oath against section 163 of the
Qanoon-e-Shahadat Order, 1984. Once an offer made by a party is accepted by the other,
then the party making an offer cannot be allowed to resile from the offer as ii amounts to
binding contract and the trial Court was justified under the circumstance to decide the
matter on oath, view find support from case cited as Atiquallh v, Kafayatullah (1981
SCMR 162) and Salim Ahmad v. Khusbi Muhammad (1974 SCMR 224).
12. Once the respondent No.4 himself agreed to a triode of decision before the trial Court,
the decision by the trial Court was unquestionable and the respondent No.4 was estopped
to challenge the same before the learned SLAT and the learned Appellate Tribunal erred
in reverting the decision of learned trial Court, from the order of the learned Appellate
Tribunal referred to in para. 6 above, it seems that learned Appellant Tribunal misdirected
itself considering that the matter was to be decided in accordance with Article 163 of the
Qanoon-e-Shahadat Order 1984, which lays down certain procedure, as against Oath Act
1873. Both set of provisions have their own sphere of operation and cannot be held to be
derogatory or overlapping each other.
13. From the contents of application made by the respondent No.4 to decide the matter on
special oath, it cannot be said that this was under Article 163 of the Qanoon-e-Shahadat
Order 1984 which provides claimant to first take oath in support of his claim and then
call upon the defendant to deny the claim on oath. In the instant case, it was the
respondent No.4 who offered to, give up his grievance petition provided the petitioner
answers a question in negative, which offer was accepted by the petitioner and took oath
accordingly, and the decision was given by the learned trial Court Under the
circumstances, it was not incumbent on the trial Court to first call upon the respondent
No.4 to take oath as the matter was decided in accordance with the Oath Act, 1873 and
not under Article 163 of Qanoon-eShahadat Order, 1984; guided by the principle laid
down in Saleem Ahmad Case by the Hon'ble Supreme Court that offer made by a party
and accepted by the other is in the nature of binding contract and one of the contracting
party could not be allowed to back out of it unless the contract was void or had been
frustrated, admittedly this was not the case of the respondent No.4 before the Appellate
Tribunal therefore the learned Tribunal was not justified to upset the decision of the
learned Labour Court.
14. Consequently, the petition was allowed by us by short order and above are the reasons
for the same, since the petition was allowed there was no necessity to pass any order in
the listed application which also stands disposed of.
H.B.T./P-10/K Petition allowed.
Page No. 3 of 3
1999SCMR2115
Present: Sh. Riaz Ahmed and Munir A. Sheikh, JJ
MUHAMMAD YOUSAF--.-Appellant
versus
BULANDA through Legal Heirs---Respondent
Civil Appeal No. 1319 of 1995, decided on 11th February, 1999.
(On appeal against the judgment and order, dated 24-10-1994, of the Lahore High Court,
Multan Bench, Multan in Civil Revision No.242 of 1986).
Specific Relief Act (I of 1877)---
----S. 42--: Qanun-e-Shahadat (10 of 1984), Art. 163---Suit for declaration--Decision on oath---
Respondent/plaintiff filed suit for declaration that sale-deed in respect of land in dispute
allegedly executed by respondent/plaintiff in favour of defendant/appellant was not binding on
respondent/plaintiff as transaction of sale-deed was made through misrepresentation and that
respondent/plaintiff had not signed the sale-deed---Respondent/plaintiff volunteered that
proceedings under Art. 163 of Qanun-e-Shahadat, 1984 be taken and that respondent/plaintiff
was ready to take oath on Holy Qur'an in proof of its claim-Respondent/plaintiff took oath to
the effect that land in dispute was given to defendant/appellant on lease and that
respondent/plaintiff had never received any consideration nor had intended to sell land to
defendant/appellant--Defendant/appellant accepted statement of respondent/plaintiff made. by
him on oath,. but declined to take oath in rebuttal---Trial Court and Appellate Court below
concurrently decreed suit on. basis of legal effect of Art. 163(2) of Qanun-e-Shahadat, 1984
and High Court upheld judgment, and decree of Courts below in revision---Validity---
Defendant/appellant had, in fact, conceded claim of respondent/plaintiff on Holy Qur'an which
resulted in a consent decree--Defendant/appellant could not be allowed to turn round so as to
challenge such consent decree---Findings arrived at by Courts below being in consonance with
law, could not be interfered with by Supreme Court in appeal.
S.M. Tayyab, Senior Advocate Supreme Court and S. Abul Aasim Jafri, Advocate-on-Record
for Petitioner.
Mukhtar Hussain Awan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for
Respondents.
Date of hearing: 11th February, 1999.
JUDGMENT
SH. RIAL AHMED, J.---This appeal through leave of this Court is lirected against the
judgment and order, dated 24-10-1994 delivered by a Single judge of the Lahore High Court at
Multan whereby revision petition filed by the petitioner under section, 115, C.P.C. was
dismissed.
2. The background of the litigation between the parties is that on 8-b-1985 Bulanda respondent
instituted a civil suit against the appellant, real nephew for a declaration that the sale-deed,
dated 18-11-1984, in respect of land measuring 38 Kanals, 2 Marlas situated in revenue estate
of Jawind Singhwala, Tehsil Kabirwala, District Khanewal in favour of the appellant was not
binding on the respondent/plaintiff because the transaction was sham, fraudulent and the
execution was made through misrepresentation and the plaintiff/respondent had not signed the
said deed. The suit was resisted and the written statement was filed, but before further
proceeding could be taken, on 22-10-1985, the counsel for the plaintiff/respondent volunteered
that proceeding under Article 163 of the Qanun-e-Shahadat Order, 1984 (hereinafter called the
Order) be taken and that the plaintiff/respondent was, ready to take oath on the Holy Qur'an.
Page No. 1 of 2
On the same day, the plaintiff took oath to the effect that the land was given to the appellant on
lease and that the plaintiff never received any consideration nor had intended to sell this land.
Upon this the appellant was directed to take oath in rebuttal, but he declined and the following
statement was made by him:--
On the same day, i.e. 22-10-1985, the learned Civil Judge decreed the suit on the basis of the
legal effect of Article 163(2) of the Order. The appellant then filed an appeal, but the same was
dismissed on 6-2-1986 by the District Judge, Khanewal. The learned District Judge held that
the above reproduce statement made by the appellant amounted to conceding the claim of the
plaintiff/respondent and, therefore, now he cannot turn around and resile from this statement.
The District Judge also refused to accept the appellant's plea that he had never made the above
statement and observed that the said statement was not only signed by the appellant, but his
counsel had also signed the same and, therefore, the learned District Judge refused to disbelieve
the judicial record.
3. It was vehemently argued before us that Article 163(2) of the Order had no applicability and
the case could not have been decided on the basis thereof. We are not inclined to agree with the
contention so raised because as held by the Courts below that apart from the question of
interpretation of Article 163(2) of the order the appellant had in fact conceded the claim of the
respondent on the Holy Qnr'an. The findings arrived at by the learned District Judge are in
consonance with law and the claim of the respondent had been conceded by the appellant and it
amounted to a consent decree and, thus, the appellant now cannot be allowed to turn around so
as to challenge the consent decree. Of course, there would have been weight if the appellant
had not stated that whatever the respondent stated on Holy Qur'an was correct. If without
making such statement, the appellant had refused to take oath in rebuttal, then of course no
decree could have been passed under Article 163(2) of the Order because the said provision of
law does not provide any penalty in the event of the opposite party's refusal to take oath in
rebuttal. In the circumstances of this case, the appellant admitted correctness of the statement
of the respondent on Holy Qur'an, which in fact, has changed the entire complexion of the case
and, thus, it amounted to a consent decree, which was rightly passed in the background of the
facts of this case. In this view of the matter, we do not find any merit in this appeal and the
same is hereby dismissed.
H.B.T./M-326/S Appeal dismissed.
Page No. 2 of 2
1999SCMR378
Present: Ajmal Mian, C. J., Sh. Ijaz Nisar and Ch. Muhammad Arif, JJ
BASHIR AHMED ---Appellant
versus
MUHAMMAD LUQMAN---Respondent
Civil Appeal No.243 of 1994, decided on 18th November, 1998.
(On appeal from the judgment, dated 21-11-1993, passed by the High Court of Sindh, at
Karachi, in Civil Revision Application No.40 of 1989).
----Art. 163---Oaths Act (X of 1873), Ss. 8 to 12---Constitution of Pakistan (1973), Art.

185(3)---Acceptance or denial of claim on oath---Leave to appeal was granted by
Supreme Court to examine the question about the interpretation of Art. 163, Qanun-e-
Shahadat, 1984 and Ss.8 to 12, Oaths Act, 1873.
----Art. 163---Oaths Act (X of 1873), Ss.8, 9, 10 & 11---Oath and affirmation---

Acceptance or denial of claim on oath---Oath within contemplation of Ss. 8 to 11, Oaths
Act, 1873, stems from a voluntary agreement between the parties while oath envisaged
by Art. 163, Qanun-e-Shahadat, 1984 is upon the initiative taken by the plaintiff without
any specific provision providing the penal consequences of the defendant's non-
acceptance to deny claim on oath--No adverse inference could be drawn against the
plaintiff when the necessary conditions of the oaths as provided by Art. 163 of Qanun-e-
Shahadat and the Oaths Act, 1873 were missing.
(c) Specific Relief Act (I of 1877)---
----S. 12---Agreement to sell property---Suit for specific performance of agreement---

Execution of agreement and the receipt of the earnest money was admitted by the
respondent but he had failed to lead any convincing evidence about the return of earnest
money and termination of the agreement---Agreement of sale had been validly executed
by the parties in respect of the property in dispute and respondent had failed to perform
his obligations towards the completion of the transaction---Courts, therefore, had rightly
decreed the plaintiff's suit.
(d) Oaths Act (X of 1873)---
----S.9---Taking oath---Refusal by a party---Consequence---Refusal of a party to take

oath, in contemplation of S.9 of the Oaths Act, 1873; cannot result in itself defeating the
claim or defence of that party.
A.R. Akhtar, Advocate Supreme Court/Advocate-on-Record for Appellant.
Muhammad Yaseen Azad, Advocate (with Special Permission of the Court) for
Respondent.
Date of hearing: 18th November, 1998
JUDGMENT
SH. IJAZ NISAR. J.---This appeal by leave of the Court is directed against the
judgment, dated 21-11-1993, passed by a learned Single Judge of the Sindh High Court,
Page No. 1 of 4
Karachi, whereby he set aside the concurrent findings of the Courts below and dismissed
the suit filed by Bashir Ahmed appellant.
2. The facts, in brief, are that the appellant had filed a suit for specific performance of
agreement, which was reduced into writing in the form of declaration and undertaking
signed by Muhammad Luqman respondent, whereby the latter had agreed to sell a
double-storeyed building bearing No.J-15, 'J' Market, Karachi, to the appellant in the sum
of Rs.22,000, out of which he had received Rs.5,000 by way of advance. The transaction
was to be completed within three months when the balance amount was to be paid and
possession delivered to the appellant. According to the appellant, he was ready and
willing to perform his part of the agreement but the respondent failed to transfer the
property in dispute to him.
The respondent contested the suit and pleaded that the agreement had been terminated
and the advance amount received from the appellant returned to him.
3. On the pleadings of the parties the following issues were framed:--
(1) Whether the plaintiff received the advance amount back and terminated the contract
of sale transaction in respect of the disputed house?
(2) Whether the plaintiff is entitled to the relief claimed?
(3) What should the decree be?
After recording evidence of the parties, the learned Civil Court decided both the issues in
favour of the appellant and decreed the suit in his favour vide judgment dated 29-3-1987.
4. Feeling aggrieved, Muhammad Luqman respondent filed an appeal in the District

Court against the said judgment and decree, which was dismissed by the II-Additional
District Judge, Karachi East, vide judgment and decree dated 26-11-1988. He then
challenged the aforesaid judgment and decree by filing a Revision Application in the
High Court, which was allowed on 21-11-1993 and the judgments and decrees of the
Courts below were set aside.
Thereafter, Bashir Ahmad appellant approached this Court and the leave was granted to
him to examine the question about the interpretation of Article 163 of Qanun-e-Sahadat
Order and sections 8 to 12 of the Oaths Act.
5. The main reason which prevailed with the learned High Court in accepting the
Revision Application of the respondent was that the offer made by him to take a special
Oath that the contractual obligation between the parties had come to an end by his
returning the advance amount of Rs.5,000 to the appellant was not accepted by him,
which had weakened his claim in the suit. The relevant discussion to this effect is re-
produced below:--
"Now in the instant case, it was the defendant who in his written statement offered to take
the special oath but none is shown to have been entertained, even though the offer was
repeated during the course of defendant's examination-in-chief. Likewise, the defendant
challenged the plaintiff to make the requisite oath while the plaintiff was under cross-
examination but that the plaintiff declined. Matters did not end there and the defendant
made an application under Article 163 of Qanun-e-Shahdat at a later stage, seeking that
the plaintiff be required to take special oath in terms stated. The application itself was
dismissed. If the defendant had made the offer, manifestly envisaged in section 8 of the
Oaths Act, the Court could have declined it only for good and sound reason, since in no
other way its discretion could be exercised. That was not done, correspondingly, when the
defendant challenged the plaintiff to make an oath, contradicting the defendant's
averment, as regards the return of earnest money, the Court could have refused the move
but again for reasons to be recorded. It neither accepted nor rejected the demand though
the plaintiff himself declined. Likewise, if the plaintiff had refused to accede to the
challenge, in terms of section 12 of the Oaths Act, requisite endorsement on the record
should have been made but none was made. Defendant's application under Article 163
Page No. 2 of 4
itself was rejected, again on a technical ground namely, that it did not lie. To the extent of
the claim of refund of earnest money, the defendant filed the character of a Plaintiff and
the application under Article 163 of the Qanun-e-Sahadat may have been quite
competent. Alternatively, the application could have been treated as one under section 9
of the Oaths Act and disposed of accordingly Such too did not come to transpire.
While it is settled law that a refusal of a party to take oath, in contemplation of section 9
of the Oaths Act, cannot result in itself defeating the claim or defence of that party such is
an important piece of material under section 12 of the Act and can always be considered
in conjunction with other facts of the case to arrive at a proper finding. This we can do
even at this stage. The refusal, together with other material on the record, has definitely
weakened the plaintiff's claim in the suit.
6. It is contended that the transaction in question having been admitted by the parties for
valid consideration being in the nature of an agreement/undertaking, suit for specific
performance of contract was maintainable and had been rightly decreed by the trial Court
on the weight of evidence led by the parties and that there being no material irregularity
or jurisdictional defect, the High Court in the exercise of its revisional jurisdiction could
not have disturbed the finding of fact arrived at by the Courts below. It is further
maintained that the Oath under Qanun-e-Sahadat Order and the one under the Oaths Act,
1873, were diametrically opposed to each other, and no inference could be drawn by the
Court against the plaintiff on his refusal to take oath under Article 163 of Qanun-e-
Sahadat Order, 1984.
7. We have heard the learned counsel for the parties at length on the effect of refusal of
the appellant to accept the offer of the respondent to deny on oath having received back
Rs.5,000 paid to him as advance at the time of execution of the sale agreement. Article
163 of Qanun-e-Shahadat reads as follows:--------
"Acceptance or denial of claim on oath.--(1) When the plaintiff takes oath in support of
his claim, the Court shall, on the application of the plaintiff, call upon the defendant to
deny the claim on oath.
(3) Nothing in this Article applies to laws relating to the Enforcement of Hudood or other
criminal cases."
8. In the instant case, it is an admitted fact that the plaintiff-appellant had never made any
offer to take oath to deny the claim of the respondent, nor did the Court require him to
take any such oath. On the other hand, it was offered by the respondent that the appellant
should deny on oath having received back the earnest money.
9. The learned High Court had non-suited the appellant mainly for his failure to accept
the offer of the respondent to deny on oath the termination of the contract. It failed to take
into account that the oath within the contemplation, of sections 8 to 11 of the Oaths Act,
1873, stems from a voluntary agreement between the parties, while the oath envisaged by
Article 163 of the Qanun-e-Sahadat Order, 1984, is upon the initiative taken by the
plaintiff without any specific provision providing the penal consequences of the
defendant's non-acceptance to deny the claim on oath. As the necessary conditions of the
oaths as provided by Article 163 of Qanun-e-Sahadat and the Oaths Act were missing, no
adverse inference could be drawn against the appellant.
10. The Courts below had after proper assessment of the evidence led by the patties come
to the conclusion that the agreement of sale had been validly executed by the parties in
respect of the property in dispute and that the respondent had failed to perform his
obligations towards the completion of the transaction and hence decreed the suit in favour
of the appellant. The execution of the agreement and the receipt of the earnest money was
admitted by the respondent but he failed to lead any convincing evidence about the return
of the earnest money and termination of the agreement. In this view of the matter, the
Courts below had rightly decreed the appellant's suit.
Page No. 3 of 4
11. For the reasons discussed above, we allow the appeal, set aside the judgment of the
learned High Court and restore the judgments and decrees of the Courts below leaving
the parties to bear their own costs.
M.B.A./B-26/S Appeal allowed.
Page No. 4 of 4
Present: Saleem Akhtar, Mukhtar Ahmad Junejo,

and Khalil-ur-Rehrnan Khan, JJ
MAHMOOD ALI BUTT---Petitioner
versus
INSPECTOR-GENERAL OF POLICE, PUNJAB,

LAHORE and 10 others---Respondents
Civil Petition, for Leave to Appeal No.2399-L of 1996, decided on 23th February, 1997.
(On appeal from the order of Lahore High Court, Lahore dated 28-8-1996 passed in Intra-
Court Appeal No.321 of 1996).
Per Khalil-ur-Rehman Khan, J.: Saleem Akhtar. J.: agreeing: Mukhtar Ahmad
Juneio. J. Contra--
----Art. 163---Acceptance or denial of claim on Oath---Procedure---Provision of Art. 163,

Qanun-e-Shahadat, 1984 has not adopted fully the concept of "deciding a claim on oath"
on the basis of the tradition of Holy Prophet---No procedure for taking oath by the parties
having been either prescribed or spelled out from Art. 163, Qanun-e-Shahadat, Court has
been left to proceed with the matter as it may deem fit---Court thus can adopt the mode of
deciding a cause in accordance with the tradition of the Holy Prophet.
Article 163, Qanun-e-Shahadat, 1984 provides that when the plaintiff takes oath
in .support of his claim, the Court shall on the application of the. plaintiff call upon the
defendant to deny the claim on oath. Nothing has been said in this provision as to the
consequences which will follow on taking oath by the defendant denying the claim in
answer to the taking of the oath in support of his - claim by the plaintiff. No procedure for
taking the oath by the parties has been either prescribed or spelled out.
This provision has not adopted fully the concept of "deciding a claim on oath" as
propounded by old masters of Muslim Jurisprudence on the basis of the tradition of the
Holy Prophet (S.A.W.):-- ,
(the burden of proof beyond all doubts is on the plaintiff while oath is to be
exacted from the one who denies i.e., the defendant).
If the plaintiff produces evidence in attestation of his claim as the initial burden of
proof is on him, then the defendant shall also produce his evidence and Qazi is to
pronounce the judgment on the basis of the evidence on record. If, on the other hand,
when the claim made is shown to be prima facie valid but the plaintiff is unable to
produce evidence and demands that the defendant to be put to his oath, in that case Qazi
must administer oath to him. The demand of plaintiff is requisite to the exaction of oath
as it is his right. This has not been so provided in Article 163 of the Qanun-e-Shahadat as
the matter has been left to the Court to proceed with the matter as it may deem fit.
However, it is open to the Court to adopt the mode of deciding a cause in accordance
with the tradition of the Holy Prophet (S.A.W.).
Charles Hamilton's Hedaya Vol. 3, p.401; Ainul Hedaya, Vol. 3. pp.444-445, 449
and Durrul Mukhtar (Urdu Edn.), Vol. 3, p.364 rel.
(b) Oaths Act (X of 1873)---
----Ss. 8 & 9---Qanun-e-Shahadat (10 of 1984), Art. 163---Special oath--Dispute as to

claim of money given as loan---Alleged debtor himself offered that real cause of dispute
agitated (advancing of loan by claimant) be decided on the basis of statement on oath on
Page No. 1 of 8
Holy Qur'an by the claimant and her brother--Such offer to decide the dispute,
controversy or claim according to statement on oath of a party or a nominated person and
undertaking to bind himself with such a statement is covered by provisions of Oaths Act,
1873---Alleged debtor having chosen his own mode of deciding the controversy and
having offered to bind himself with the statement on Holy Qur'an could not be allowed to
resile from the liability so incurred and established as the statement on Holy Qur'an so
made was to be treated as conclusive proof of the matter in question---Breach of such
undertaking amounted to contempt of Court---Special oath made basis of the decision
therefor, is not covered by Art. 163, Qanun-e-Shahadat and reference to said Article and
alleged violation of any supposed prescribed procedure was not relevant in
circumstances.
Oath is administered under sections 10 and of the Oaths Act, 1873 8301 D
The situation which prevailed in the present case was that the petitioner himself
offered that real cause of the dispute agitated be decided on the basis of statement on oath
of respondent and her brother. This situation i.e., the offer to decide the dispute,
controversy or claim according to statement on oath of a party or a nominated person and
undertaking to bind oneself with such a statement is covered by the provisions of Oaths
Act, 1873.
Special oath is administered to a party or nominated person or a witness when a

party offers to bind itself to the statement to be made on oath by the other party.
Offer to abide by the oath of opposite-party and its acceptance by the other party
was in the nature of an agreement and the question whether the party who offered can
resile from it, depends on the facts and circumstances of each case.
A party offering to have a cause decided on oath and undertaking to abide by the
special oath of a person (party or not a party to the suit) cannot be allowed to resile from
it, for it amounted to a binding contract unless it was found to be void or stands
frustrated. So validity of decisions given on the basis of special oath was upheld under
the provisions of Oaths Act, 1873. It will, therefore, be seen that "special oath" trade basis
of the decision in the present case is not covered by Article 163 of the Qanun-e-Shahadat
and reference, to Article 163 and alleged violation of any supposed prescribed procedure
urged, is misconceived.
The facts that the alleged debtor had offered the claimant to take oath; that he owed her
the money, that the debtor undertook to be bound with the statement to be made by her on
Holy Qur' an and that she did take the oath and made the statements were not denied. The
debtor then by making request to the High Court to allow him the facility of instalments
to pay off the liability incurred due to the sworn deposition again signified his acceptance
of the liability and binding nature of his undertaking given to the opposite-party as well
as to the Court. The order to liquidate the liability within a period of one year is outcome
of the mode of decision adopted and chosen by the debtor. His request to grant, him the
facility of liquidating the liability through instalments was also allowed. The debtor had
chosen his own mode of deciding the controversy and having offered to bind himself with
the statement on Holy Qur'an could not be allowed to resile from the liability so incurred
and established as the statement on Holy Qur'an so made was to be treated as conclusive
proof of the matter in question. To allow him to wriggle out of the liability would amount
to making mockery of the solemn proceedings. The debtor could not be heard to say that
after adopting the course that he chose for resolution of the respective claims and
establishment of his liability, his undertaking be not enforced and the claimant should be
asked to her remedy from Civil Courts. Such a dishonest conduct could not be
countenanced, what to say of accepting the same as it amounted to ridiculing the process
of the Court and defeating the purpose for which the Courts of justice exist i.e. resolving
the real cause of dispute and affording the necessary .relief to the party wronged.
Procedure exists for advancing cause of justice. Proper place of procedure in any system
of administration of justice was to help and not to thwart the grant to the people of their
rights. All technicalities have to be avoided unless it was essential to comply with them
on grounds of public policy. Any system which by giving effect to the form and not to the
Page No. 2 of 8
substance defeats substantive rights was defective to that extent. The ideal must always
be a system that gives to every person what is his.
Breach of undertaking to the Court amounted to contempt of Court. The debtor by

challenging the order passed in fact sought to avoid the liability so incurred by him.
Charles Hamilton's Hedaya Vol. 3 p.401; Ainul Hedaya, Vol.3, pp.444, 445 apd
449; Durul Mukhtar (Urdu Edn.), Vol. 3, p.364; Mst. Asifa Sultana v. Honest Traders,
Lahore and another PLD 1970 SC 331; Muhammad Akbar and another v. Muhammad
Aslam and another PLD 1970 SC 241; Attiqullah v. Kafayatullah 1981 SCMR 162;
Muhammad Mansha and 7 others v. Abdul Sattar and 4 others 1995 SCMR 795;
Muharnmad Rafique and another v. Sakhi Muhammad and others PLD 1996 SC 237;
Maulvi Muhammad Ramzan v. Muhammad Ismail 1982 SCMR 908; Saleem Ahmad v.
Khushi Muhammad 1974 SCMR 224 and Imtiaz Ahmad v. Ghulam Ali and others PLD
1963 SC 382 ref.
(c) Constitution of Pakistan (1973)--
-Art. 199---Constitutional jurisdiction of High Court -Scope---High Court normally does

not entertain a petition under Art.199 of the Constitution to enforce the civil liability
arising out of a breach of contract to pay the amount of money due to the claimant and
leaves same to the aggrieved party to agitate the question in a civil suit filed for that
purpose---High Court, in its Constitutional jurisdiction under Art. 199 of the Constitution
of Pakistan, however, can order payment of money against State or its functionaries to
enforce a statutory obligation.
Sint. Charanjit Kaur v. Union of India and others AIR 1994 SC 1491 ref.
(d) Administration of justice---
--Procedure---Object---Proper place of procedure in any system of administration of

justice is to help and not to thwart the grant to the people of their rights---N1
technicalities have to be avoided unless it is essential to comply with them on grounds of
public policy---Any system which by giving effect to the form and not to the substance
defeats substantive right, is defective to that extent---Ideal must always be a system that
gives to every person what is his.
Imtiaz Ahmad v. Ghulam Ali and others PLD ' 1963 SC 382 ref.
Per Mukhtar Ahmad Juneio, J. Contra.—
S.M.K. Lodhi, Advocate instructed by Ch. Mehdi Khan Mehtab Advocate-on-

Record for Petitioner.
Nemo for Respondents
Date of hearing: 23rd February, 1997
ORDER
KHALIL-UR-REHMAN KHAN, J.---This petition is directed against the order

dated 28-8-1996 passed in Intra-Court Appeal and the order dated 5-8-1996 passed in the
Constitution petition by the learned Judges of the Lahore High Court, Lahore.
2. The relevant facts, briefly stated, are that the petitioner in the Constitution petition,
filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, sought a
direction to the Senior Superintendent of Police, Lahore (respondent No.2) and Deputy
Superintendent of Police, Naulakha Circle, Lahore (respondent No.3) to register a
criminal case against respondents Nos.5 to 11 for committing offences as detailed in
paragraph 1 of the petition, in Police Station Mozang, Lahore. Respondents Nos.5 and 6
are police officials while other respondents are citizens including Mst. Bano Begum cited
as respondent No.7.
Page No. 3 of 8
The allegations contained in paragraph of the Constitution petition, in brief, are that Mst.
Bano Begum, respondent No.7 borrowed Rs.9,40,000 from the petitioner for construction
of her house. She returned Rs.1,30,000 and balance amount i.e. Rs.8,10,000 is still due
from the said respondent who with a view to grab the said amount constituted a gang of
desperate persons led by Dr. Ziaullah Bangish respondent No.11. It was also alleged that
whenever Mst. Bano Begum was approached to pay the amount, she advanced threats in
the garb of respondents Nos.4 to 6 (police officials) and respondents Nos.8 to 11 (private
citizens) for committing murder of petitioner and that on 7-7-1996, respondents Nos.5, 6,
8 to 11 came armed at the residence of the petitioner to murder him but due to
intervention of respectables of the locality petitioner saved himself from their clutches
and so they left giving threats of dire consequences. The plea was that despite lodging
report of the incident with Police Station Mozang, Lahore and telegram to respondents
Nos.l to 3 (Inspector-General of Police and others) criminal case was not registered but a
mere report was recorded.
4 * Learned Judge, vide order dated 25-7-1996 directed S.H.O. concerned and Mst.
Bano Begum respondent No.7, to appear before the Court on 5-8-1996. Both of them
appeared and after hearing the petitioner, the S.H.O. and respondent No.7 (described as
Bano Begum), the facts which transpired (as noted in the order dated 5-8-1996) are that--
(a) the petitioner is son of maternal uncle of Mst. Akhtar Bano Begum (respondent
No.7) and was brought up by latter's mother and the two had been brought up and
had grown together like brother and sister;
(b) the petitioner had borrowed from her more than rupees seven lacs about two years
ago and now when her children are to be married, she demanded return of the
amount due, and the petitioner instead of satisfying the liability has started giving
threats and making fake application to authorities.
Learned Single Judge noted that the petitioner had concealed the factum of relationship
with respondent No.7 and that the petitioner when asked about the claim made by the
respondent No.7 falsely contradicted the same but subsequently offered that if Mst.
Akhtar Bano Begum respondent and Allah Ditta, her brother present in Court, take oath
on the Holy Qur'an and state that the petitioner owed any money to respondent No.7, he
would pay the same to her. Both of them accepted the offer of the petitioner. They were
sent to the High Court Mosque alongwith the petitioner and Reader of the Court for the
purpose of oath. On their return, Reader of the Court reported that Mst. Akhtar Bano
Begum respondent as well as her brother Allah Ditta had after performing ablution, taken
oath on the Holy Qur'an in the presence of the petitioner to the effect that the petitioner
owed Rs.7,14,000 to Mst. Akhtar Bano Begum. Learned Judge further noted that the
petitioner verified these facts before him in Court and even made a statement to this
effect in writing signed by him and countersigned by his learned counsel. This statement
was formed part of the record.
5. The petitioner at that stage requested the Court to allow him to liquidate the
admitted liability of Rs.7,14,000 in the form of monthly instalments of Rs.50,000 each
with the condition that he shall clear the entire liability within one year. This offer was
also accepted by Akhtar Bano Begum, though with some reluctance. Learned Judge made
the aforenoted proceedings of the compromise arrangement part of the Court record and
directed the petitioner to bring the sum of Rs.50,000, the amount of first. instalment, for
payment to the respondent on 5-9-1996, to which date the proceedings were adjourned.
6. The petitioner then assailed this order dated 5-8-1996 in appeal (Intra Court, Appeal
No.321 of 1996) before a Division Bench of the Lahore High Court. This appeal was
dismissed in limine vide order dated 28-8-1996 observing, inter alia, that matter in
controversy was decided on oath of Holy Qur'an taken by Mst. Akhtar Bano Begum and
her brother Allah Ditta on the offer of the petitioner and his counsel and as such no
interference is called for,
7. The present petition challenging both these orders was then filed. Learned counsel
in support of the petition submitted that learned Single Judge had acted illegally in
Page No. 4 of 8
decreeing the claim of Mst. Akhtar Bano Begum as in Constitutional jurisdiction money
claim could not be entertained and decreed. According to him, Mst. Akhtar Bano Begum
respondent should have been asked to file a suit for recovery of money in the Civil Court
as in exercise of Constitutional jurisdiction, High Court could not have taken upon itself
to settle money dispute between the two parties and that the impugned order tantamounts
to awarding decree without the payment of court-fee.
Learned counsel lastly contended that- the taking of oath was not in conformity
with the procedure prescribed in Article 163 of the, Qanun-eShahadat, 1984. He did not
elaborate this submission as, obviously no procedure has been prescribed under Article
163 of the Qanun-e-Shahadat. This Article provides that when the plaintiff takes oath .in
support of his claim, the Court shall on the application of the plaintiff call upon the
defendant to deny the claim on oath. Nothing has been said in this provision as to the
consequences which will follow on taking oath by the defendant denying the claim in
answer to the taking of the oath in support of his claim by the plaintiff. No procedure for
taking the oath by the parties has been either prescribed or spelled out.
8. This provision has not adopted fully the concept of "deciding a claim on oath" as
propounded by old masters of Muslim Jurisprudence on the basis of the tradition of the
Holy Prophet (S.A.W.):--
(the burden of proof beyond all doubts is on the plaintiff while oath is to be exacted from
the one who denies i.e., the defendant).
For discussion on the subject, see Charles Hamilton's Hedaya (Volume 3), page
401; Ainul Hedaya, Vol. 3 pages 444, 445 and 449; and Durul Mukhtar (Urdu Edition),
Vol. '3, page 364. The principle deducible from this discussion is that if the plaintiff
produces evidence in attestation of his claim as the initial burden of proof is on him, then
the defendant shall also produce his evidence and Qazi is to pronounce the judgment on
the basis of the evidence on record. If, on the other hand, when the claim made is shown
to be prima facie valid but the plaintiff is unable to produce evidence and demands that
the defendant to be put to his oath, in that case Qazi must administer oath to him. The
demand of plaintiff is requisite to the exaction of oath as it is his right. This has not been
so provided in Article 163 of the Qanun-e-Shahadat as the matter has been left to the
Court to proceed with the matter as it may deem fit. However, it is open to the Court to
adopt the mode of deciding a cause in accordance with the tradition of the Holy Prophet
(S.A.W.).
9. The situation which prevailed in the instant case was that the petitioner himself
offered that real cause of the dispute agitated in the Constitution petition be decided on
the basis of statement on oath of respondent No.7 and her brother, This situation i.e., the
offer to decide the dispute, controversy or claim according to statement on oath of a party
or a nominated person and undertaking to bind oneself. with such a statement is covered
by the provisions of Oaths Act. 1873. Sections 8 and 9 of the Oaths Act read as
hereunder:--
"8. If any party to, or witness in, any judicial proceeding offers to give evidence on oath
or solemn affirmation in any form common amongst, or held binding by, persons of the
race or persuasion to which he belongs, and not repugnant to justice or decency, and not
purporting to affect any third person, the Court may, if it thinks fit, notwithstanding
anything hereinbefore contained, tender such oath or affirmation to him.
9. If any party to any judicial proceeding offers to be bound by any such oath or solemn
affirmation as is mentioned in section 8, if such oath or affirmation is made by the other
party to, or by any witness in, such proceedings, the Court may, if it thinks fit, ask such
party or witness, or cause him to be asked, whether or not he will make the oath or
affirmation:
Provided that no party or witness shall be compelled to attend personally in Court solely
for the purpose of answering such question."
Page No. 5 of 8
Oath is administered under section 10 and the next succeeding section (section 11), which
read as under:--
"10. If such party or witness agrees to make such oath or affirmation, the Court may
proceed to administer it, or, if it is of such a nature that it may be more conveniently
made out of Court, the Court may issue a commission to any person to administer it, and
authorize him to take the evidence of the person to be sworn or affirmed and return it to
the Court.
11. The evidence so given shall, as against the person who offered to be bound as
aforesaid, be conclusive proof of the matter stated."
10. So, the special oath is administered to a party or nominated person or a witness
when a party offers to bind itself to the statement to be made on oath by the other party.
In Mst. Asifa Sultana v. Honest Traders, Lahore and another PLD 1970 SC 331 it was
observed that the offer to abide by the oath of opposite-party and its acceptance by the
other party was in the nature of an agreement and the question whether the party who
offered can resile from it depends on the facts and circumstances of each case. Again, in
the cases of Muhammad Akbar and another v. Muhammad Aslam and another PLD 1970
SC 241; Attiqullah v. Kafayatullah 1981 SCMR 162; Muhammad Mansha and 7 others v.
Abdql Sattar and 4 others 1995 SCMR 795; Muhammad Rafique and another v. Sakhi
Muhammad and others PLD 1996 SC 237; Maulvi Muhammad Ramzan v. Muhammad
Ismail 1982 SCMR 908 and Saleem Ahmad v. Khushi Muhammad 1974 SCMR 224 the
principle laid down is that a party offering to have a cause decided on oath and
undertaking to abide by the special oath of a person (party or not a party to the suit)
cannot. be allowed to resile from it, for it amounted to a binding contract unless it was
found to be void or stand frustrated. So validity of decisions given on the basis of special
oath was upheld under the provisions of Oaths Act, 1873. It will, therefore, be seen that
"special oath" made basis of the decision in the instant case is not covered by Article 163
of the Qanun-e-Shahadat and reference, to Article 163 and alleged violation of any
supposed prescribed procedure, urged by the learned counsel is misconceived.
11. The other pertinent aspect to be noted is that the facts that the petitioner had offered
the respondent No.7 (Mst. Bano Begum) and Allah Ditta to take oath; that petitioner
owed her the money, that the petitioner undertook to be bound with the statement to be
made by them on Holy Qur'an and that they did take the oath and made the statements,
were not denied even before us. The petitioner then'by making request to the High Court
to allow him the facility of instalments to pay off the liability incurred due to the sworn
deposition again signified his acceptance of the liability and binding nature of his
undertaking given to the opposite-party as well as to the Court. The order to liquidate the
liability within a period of one year is outcome of the mode of decision adopted and
chosen by the petitioner. His request to grant him the facility of liquidating the liability
through instalments was also allowed. The petitioner has chosen his own mode of
deciding the controversy and having offered to bind himself with the statement on Holy
Qur'an cannot be allowed to resile from the liability so incurred and established as the
statement on Holy Qur'an so made is to be treated as conclusive proof of the matter in
question to allow him to wriggle out of the liability would amount to making mockery of
the solemn proceedings. The petitioner cannot be heard to say that after adopting the
course that he chose for resolution of the respective claims and establishment of his
liability, his undertaking be .not enforced and the respondent should be asked to her
remedy from Civil Courts. Such a dishonest conduct cannot be countenanced, what to say
of accepting the same as it amounts to ridiculing the process of the Court and defeating
the purpose for which the Courts of justice exist i.e. resolving the real cause of dispute
and affording the necessary relief to the party wronged. Procedure exists for advancing
cause of justice. This Court has repeatedly held that proper place of procedure in any
system of administration of justice is to help and not to thwart the grant to the people of
their rights. All technicalities have to be avoided unless it is essential to comply with
them on grounds of public policy. Any system which by giving effect to the form and not
to the substance defeats substantive rights is defective to that extent. The ideal must
always be a system that gives to every person what is his (See Imtiaz Ahmad v. Ghulam
Ali and others PLD 1963 SC 382). Moreover, what else is required to be done after the
proceedings which were held at the option and volition of the petitioner who in any case
Page No. 6 of 8
is bound to honour his undertaking. It is well established that breach of undertaking to the
Court amounts to contempt of Court. The petitioner by challenging the order passed in
fact seeks to avoid the liability so incurred by him. Substantial justice has been done and
on merits nothing was urged. Hence interference is not warranted.
12. Before parting with this judgment, we may add that the plea that a High Court in
exercise of Constitutional jurisdiction vested under Article 199 of the Constitution cannot
direct payment of money in any case is without substance. The High Court normally does
not entertain a petition under Article 199 of the Constitution to enforce the civil liability
arising out of a breach of contract to pay the amount of money due to the claimant and
ordinarily leaves it to the aggrieved party to agitate the question in a civil suit filed for
that purpose but an order for payment of money may be made in Constitution petition
against State or its functionaries to enforce a statutory obligation. It is usual for the
Courts to order refund of the money illegally collected as a duty or a tax. The Supreme
Court of India has even allowed compensation to the aggrieved person where it was
found that the responsibility prima facie was traceable to act of criminal omissions and
commissions on part of concerned authorities. The wife of deceased officer was found
entitled to compensation and a sum of Rs.6,00,000 was awarded by the Supreme Court
itself in Suit. Charanjit Kaur v. Union of India and others AIR 1994 SC 1491 as
compensation. In the instant case, the High Court was competently seized of the petition
instituted by the petitioner himself against the said functionaries and the private
respondents and the real cause of the dispute agitated in the petition was decided in
accordance with the mode/procedure chosen by the petitioner himself. The liability so
incurred cannot be awarded off by raising dishonest pleas.
4
13 For all these reasons, we are not persuaded to intervene in the matter. Leave to appeal
is, therefore, refused and the petition is dismissed
MUKHTAR AHMAD JUNE10, J.--I have gone through the order authored by my
learned brother Khalil-ur-Rehman Khan, J., and find myself unable to agree with the
conclusion as well as with its reasons.
A pure and simple Constitution petition was filed in the Lahore High Court by
petitibner Mahmood Ali Butt with following prayers:--
"It is, therefore, most respectfully prayed that the writ petition of the petitioner may
kindly be issued directing the respondents 2 and 3 to register a criminal case against the
respondents Nos. 5 to 11 for committing the offence as mentioned in the preceding para.
No. 1, in Police Station, Mozang, Lahore.
It is further prayed that the respondent No.4, may also be directed not to involve the
petitioner in any case on the behest of respondents Nos. 5 to 11 in Police Station Misri
Shah, Lahore, or in any Police Station of the city."
During the course of arguments, learned Single Judge dealings with petitioner's
writ petition, found that the petitioner was maternal cousin of Mst. Akhtar Bano Begum,
who appeared in Court and controverted the assertions made by the petitioner. She
alleged that the petitioner had taken from her more than seven lacs of rupees for the
purpose of marriages of his children two years prior. Mst. Akhtar Bano Begun alleged
that instead of returning said amount, the petitioner had started giving her threats. During
the proceedings before the learned Single Judge, the petitioner contradicted the
allegations coming from Mst. Akhtar Bano Begum, but stated that if she and her brother
Allah Ditta take oath on Holy Qur' an that any amount of money was due to him, he
would pay the same amount. Learned Single Judge thereafter sent the parties to a mosque
in the High Court, alongwith his Reader. The Reader of the Court is said to have
informed leaned Single Judge that Mst. Akhtar Bano Begun and her brother had taken
oath on Holy Qur'an that an amount of Rs.7,14,000 was due from the petitioner to them.
On receiving such report from the Reader, learned Single Judge called upon the petitioner
to verify the fact and he made a statement in writing, which was countersigned by his
counsel and was kept on the record. Subsequently, learned Single Judge made the
compromise between the parties as part of the order of his Court and directed the
Page No. 7 of 8
petitioner to pay Rs.50,000 to Mst. Akhtar Bano Begun on 5th of every month starting
with 5-9-1996 and to pay the entire amount of Rs.7,14,000 by 5-9-1997. The petitioner
was informed that any default on his part shall be deemed to be disobedience of the order
of the Court.
Aggrieved by said order, the petitioner filed Intra-Court Appeal, which was dismissed in
limine under the impugned judgment dated 28-8-1996. Hence this petition.
Mr. S.M.K. Lodhi, learned counsel for the petitioner argued that oath said to have
been taken in the present case was in conflict with Article 163 of the Qanun-e-Shahadat.
It was next argued that while exercising jurisdiction under Article 199 of the Constitution
of Pakistan, the High Court cannot make any agreement between the parties as rule of the
Court and that a disputed question of fact cannot be decided by a High Court while
exercising the Constitutional jurisdiction, more particularly on oath to be taken by any of
the parties.
Article 163 of the Qanun-e-Shahadat reads as follows:
"163. Acceptance or denial of claim on oath.--When the plaintiff takes oath in support of
his claim, the Court shall, on the application of the plaintiff, call upon the defendant to
deny the claim on oath.
(2) The Court may pass such order as to costs and other matters as it may deem
fit.
(3) Nothing in this Article applies to laws relating to the enforcement of

Hudood or other criminal cases. "
Even in Article 163 the words "plaintiff" and "defendant" have been used and not the
words petitioner and respondent. This shows that even the provisions contained in Article
163 of the Qanun-e-Shahadat are applicable only when matter is pending in a Civil Court
between a plaintiff and a defendant. ,
Article 199 of the Constitution of Pakistan empowers a High Court inter alia to
make an order on the application of an aggrieved party directing a person performing
within its territorial jurisdiction functions in connection with the affairs of the Federation
or a Province or a local authority, to refrain from doing anything he is not permitted to do
under law, or to do anything that he is required by law to do, or declaring that any act
done or proceeding taken within its jurisdiction, by a person performing functions in
connection with the affairs of the Federation or a Province or a local authority has been
done or taken, without lawful authority and of no legal effect. In the instant case, the
petitioner invoked said provisions with a view that a direction be issued to the S.S.P.,
Lahore and the D.S.P., Naulakha Circle, Lahore to register a case against respondents
Nos.5 to 11. Learned High Court had two alternatives, either to issue such direction or to
dismiss the writ petition. Article 199 of the Constitution of Pakistan did not give third
option to the High. Court. A High Court exercising constitutional jurisdiction under
Article 199 of the Constitution of Pakistan, has to act within the four cornors of law and
cannot overstep or enlarge its jurisdiction, which is not available under the law.
I, therefore, hold that this is a fit case for grant of leave to appeal, to consider
whether the High Court while entertaining a petition under Article 199 of the Constitution
of Pakistan could pass the order of the nature passed by learned Single Judge, and
whether the High Court while exercising such jurisdiction could decide the matter on
taking of oath by a party.
ORDER OF THE COURT
M.B.A./M-33/S Petition dismissed
Page No. 8 of 8
1997SCMR1085
Present: Manzoor Hussain Sial, Muhammad Munir Khan and Mir Hazar Khan
Khoso, JJ
NAJIBULLAH KHAN and another---Petitioners
versus
FAZAL KARIM and 2 others---Respondents
Civil Petition for Leave to Appeal No. 160-P of 1995, decided on 20th June, 1995. .
(On appeal from the judgment of Peshawar High Court, Peshawar, dated 9-4-1995 passed
in Civil Revision No.689 of 1994).
-----Art. 163---Constitution of Pakistan (1973), Art. 185(3)---Parties agreed that in case

plaintiffs took oath on Holy Qur'an, their suit be decreed---Plaintiffs who were present in
Court took oath on Holy Qur'an that they were owners of land in question, as a result
whereof, their suit was decreed---Defendants' revision against such decree was
dismissed---Defendants' plea was that they had not agreed for decision of case on basis of
Oath and that Oath taken by plaintiffs being violative of Art. 163, Qanun-e-Shahadat was
not binding on them--Validity---Presumption of correctness was attached to record of
Court wherein it was stated that defendant in presence of his counsel offered Oath to
plaintiffs which was accepted by them; it was also stated in the same order that defendant
agreed and made offer that in case plaintiffs took Oath on Holy Qur'an, their suit be
decreed.--Objection that Oath proceedings were not covered by Art.163,
Qanun-e-Shahadat, 1984, was raised before High Court and was rightly disposed
of---Court having decided lis in-accordance with Oath taken on Holy Qur'an and that too
with agreement of defendants, there was no justification to interfere with their judgment
in question---Leave to appeal was refused in circumstances.
Haji Muhammad Zahir Shah, Advocate and Syed Safdar Hussain, Advocate-on-Record
for Petitioners.
Nemo for Respondents.
JUDGMENT
MUHAMMAD MUNIR KHAN, J.--This petition arises from the facts that on
12-1-1982, Fazal Karim, Fazal Subhan and Fazal Wahab respondents filed suit for
declaration to the effect that they were owners in occupation of the suit land with a prayer
for permanent injunction, against Najibullah Khan and Abdullah petitioners, in the Court
of Senior Civil Judge, Malakand. It was averred in the plaint that they were owners of the
suit land through inheritance but the defendants/petitioners were attempting to disturb
their possession of the suit land. As a consequential relief, it was prayed that the
defendants be restrained from interfering with their possession of the property. The suit
was resisted. In the written statement, preliminary objections were raised. The plea of
adverse possession was taken and the averments in the plaint were denied. The issues
were framed. The parties led their evidence. The suit was decreed on 12-5-1983. The
appeal filed by the petitioners against this judgment and decree was accepted by the
District Judge. Feeling aggrieved thereby, the respondents filed Revision Petition in the
Peshawar High Court which was accepted and the case was remanded to the District
Judge, Malakand for fresh decision of the appeal. When, after the remand, the appeal
came up for hearing before the District Judge on 6-10-1994, the parties agreed that in
case the plaintiffs/respondents took oath on the Holy Qur'an, their suit may be decreed.
Page No. 1 of 2
On this Fazal Subhan and Fazal Wahab plaintiffs, who were present in the Court, took
oath on the Holy Qur'an stating that they were the owners of the suit land and
Najeebullah and Abdullah had nothing to do with. Resultantly, the suit of the respondents
was decreed. Feeling not satisfied with the judgment and decree of the District Judge, the
petitioners filed Revision Petition before the Peshawar High Court, Peshawar, which was
dismissed vide impugned order/judgment.
2. Learned counsel for the petitioners has argued that the petitioners had not agreed for
the decision of the case on the basis of oath; and that the oath taken by the
respondents/plaintiffs being violative of Article 163 of the Qanun-eShahadat, 1984 was/is
not binding on the petitioners.
3. We have considered the submissions made by the learned counsel for the petitioners.
We do not agree with him. We find that in the order dated 6-10-1994, it is clearly stated
that the petitioner No.l in presence of his counsel offered oath to the plaintiffs which was
accepted by the latter. It has also been stated in the same order that Najeebullah
defendant/petitioner agreed and made offer that in case the plaintiffs/respondents take
oath on the Holy Qur'an, their suit may be decreed. The presumption of correctness is
attached to the order of the District Judge. Neither the petitioners/defendants, nor their
counsel filed any Affidavit to the effect that Najeebullah or the petitioners had not agreed
and made offer that in case the plaintiffs/respondents take oath on the Holy Qur'an then
their suit may be decreed. When the plaintiffs/respondents took oath on the Holy Qur'an
in the open Court, the petitioners did not object to it. Now, when the
plaintiffs/respondents have taken oath on the Holy Qur'an and the District Judge has
decided the suit accordingly, it does not lay with the petitioners to resile from agreement
and their offer and to say that the decision was made against their consent. The objection
that the oath proceedings were not covered by Article 163 of the Qanun e-Shahadat, 1984
was raised before the High Court and was rightly disposed of. Since the District Judge
has decided the appeal in accordance with the Oath taken by the plaintiffs on Holy Qur'an
and that too with the agreement of the petitioners, we do not see any justification to
interfere with the impugned judgment.
4. Accordingly, leave to appeal is refused and the petition is dismissed.
A.A./N-441/S Leave refused.
Page No. 2 of 2
1995SCMR918
Present: Muhammad Rafiq Tarar and Saiduzzaman Siddiqui, JJ
Dr. ABDUL GHAFOOR RAZA and 2 others---Petitioners
versus
Mst. RAZIA BEGUM ... Respondent
Civil Petition for Leave to Appeal No. 754/1, of 1993, decided on 30th May, 1994.
(On appeal from the judgment dated 13-4-1993 passed by the Lahore High Court, Lahore
in Civil Rev. No. 1570 of 1986).
----Art. 163---Constitution of Pakistan (1973), Art. 185(3)---Denial of claim by defendant

on Oath---Effect---Parties to suit taking Oath, one affirming the claim and the other
denying the same---Trial Court dismissed suit, also the Appellate Court---High Court in
revision, remanding case to Trial Court for decision on basis of evidence which stood
already recorded ---Validity--Provision of Art. 163, Qanun-e-Shahadat 1984 does not lay
down what would be the consequences if defendant does or does not deny plaintiffs claim
on Oath---Order of remand passed by High Court, thus, seemed to be proper, warranting
no interference---Leave to appeal was refused in circumstances.
Munir Ahmed Bhatti, Advocate Supreme Court instructed by S. Abul Aasim Jafri,
Advocate-on-Record (absent) for Petitioners.
Tanvir Ahmed, Advocate-on-Record (absent) and Mirza Hafizur Rehman, Advocate

Supreme Court for Respondent.
Date of hearing: 30th May, 1994.
JUDGMENT
MUHAMMAD RAFIQ TARAR, J.---The petitioners seek leave to appeal from the
judgment of a learned Single Judge of the, Lahore High Court dated 13-4-1993 whereby
Civil Revision of Mst. Razia Begum against the dismissal of her suit was allowed and the
case was remanded to the trial Court for decision on the basis of the evidence of the
parties.
2. The brief facts of the case are that Mst. Razia plaintiff/respondent herein filed a suit for
declaration to the effect that she was owner in possession of the property in dispute.
When the suit was at arguments stage she -filed an application on 20-11-1985 to the
effect that she was ready to swear on the Holy Qur'an that she had not sold the property in
dispute and defendant/petitioner No. 1 herein had manipulated the sale-deed. On this
application the learned Civil Judge passed the following order:-
"The plaintiff has moved on application under Article 163 of Qanun-eShahadat Order,
1984. The plaintiff wants to take oath on the Holy Qur'an. The oath is taken."
The learned Civil Judge then recorded the statement of the plaintiff/respondent on oath of
the Holy Qur'an to the following effect:-
"I state on oath of Holy Our'an that my suit is true. The rebutment of my suit be got made
from the defendant on oath on the Holy Qur'an:'
The Learned Civil Judge thereupon ordered the petitioner/defendant to make statement
on oath on the Holy Qur'an and he stated as under:-
Page No. 1 of 2
"I rebut the suit on oath of the Holy Qur'an. The suit of the plaintiff is liable to be
dismissed and it be dismissed:'
The learned Civil Judge thereupon dismissed the suit.
3. The plaintiff/respondent then filed an appeal against the aforesaid judgment which was
dismissed by the learned Additional District Judge vide judgment dated 12-4-1986. She
then filed a Civil Revision in the Lahore High Court challenging the orders of the Courts
below which was allowed with the observation that Article 163 of the Qanun-e-Shahadat
is ambiguously worded as it does not make any further provision for a situation like the
present one where parties take special oath, one affirming the claim and other denying it,
and the case was remanded to the trial Court for decision on the basis of evidence which
stood already recorded.
4. After hearing the learned counsel for the petitioners we do not feel inclined to interfere
with the order of remand passed by the learned Judge in Chamber. Section 163 of the
Qanun-e-Shahadat reads as under:-
"163. Acceptance or denial of claim on oath:-
When the plaintiff takes oath in support of his claim, the Court shall, on the application of
the plaintiff, call upon the defendant to deny the claim on oath.
(2) The Court may pass such order as to costs and other matters as it may deem fit.
(3) Nothing in this article apples to laws relating to the enforcement of Hudood or other
criminal cases."
The section does not lay down what will be the consequences if the defendant does or
does not deny the claim on oath. In the circumstances the order of remand passed by the
learned Single Judge seems proper and no interference with the same is called for by this
Court. This petition is, therefore, dismissed.
AA./A-1189/S Leave refused.
Page No. 2 of 2
Present. Muhammad Afzal Zullah, CJ. And Abdul Qadeer Chaudhry, J
MIRZA KHAN and another --- Appellants
versus
MUHAMMAD ILYAS --- Respondent
Civil Appeal No 384 of 1986, decided on 19th January, 1991.
(On appeal from the judgment dated 22-3-1986 of the Lahore High Court, Rawalpindi
Bench, Rawalpindi in Regular Second Appeal No.23 of 1982).
(a) Punjab Pre-emption Ad (I of 1913)---
----S. 15 --- Constitution of Pakistan (1973), Art.185(3) --- Leave to appeal was granted
to examine whether High Court had not exceeded its jurisdiction in second appeal In
reversing the concurrent findings of fact arrived at by the two Courts below and whether
after the decision in the case of Government of N.-W.F.P. v. Malik Said Kamal Shah PLD
1986 SC 360, respondent could at all be granted a decree for pre-emption on the ground
of his being the son of the vendor.
(b) Qanun-e-Shahadat (10 or 1984)----
---- Art. 163 --- Plaintiff had himself appeared as his own witness and had made a
statement on oath---Such statement of plaintiff would not be treated as such a piece of
evidence as could be covered by the general argument that ' the judgment suffered from
illegal admission of evidence --- Deposition on oath by a party in his own favour
nevertheless remains evidence.
(c) Punjab Pre-emption Act (I of 1913)---
---- S. 15 --- Pre-emption suit-Relationship of being father and son between the vendor
and plaintiff was established --- Concurrent finding of fact by Court with regard to the
establishment of such relationship --- Held, even if the appellants were able to challenge
before a higher forum the correctness of the finding, it would not be liable to be set aside
merely because the finding had been reached through an improper or illegal procedure ---
Such a plea of improper or illegal procedure could no more be acceptable in Courts of
law in Pakistan as it ran against many mandates in Constitutional set-up of Pakistan
which were based on Islamic jurisprudence, philosophy and law.
(d) Islamic Jurisprudence---
---- Administration of justice --- Pre-emption suit --- Relationship between vendor and
plaintiff was established through concurrent finding of Courts --- Such a finding of fact
would not be liable to be set aside merely because the finding had been reached through
an improper or illegal procedure even though the appellant had challenged same before a
higher forum.
Maulvi Sirajul Haq, Senior Advocate Supreme Court and MA. Siddiqui,
Advocate-on-Record (absent) for Appellants.
Malik M. Jaffar, Advocate Supreme Court and Ch. Ghulam Dastgir, Advocate-on-Record
for Respondent.
Date of hearing: 19th January, 1991.
JUDGMENT
Page No. 1 of 2
MUHAMMAD AFZAL ZULLAH, C.J.--- This appeal through leave of the Court is
directed against the judgment, dated 22nd March, 1986 of the Lahore High Court;
whereby in a pre-emption matter the regular second appeal of the respondent/plaintiff
was allowed and his suit was decreed on the ground that he is the son of the vendor, while
the appellants have no such relationship.
Leave to appeal was granted to examine: whether, the High Court ad not exceeded its
jurisdiction in second appeal in reversing the concurrent findings of fact arrived at by the
two Courts below. Secondly, whether after the decision in the case of Government of
N.-W.F.P. v. Malik Said Kamal Shah P L D 1986 SC 360 the respondent could at all be
granted a decree for pre-emption on the ground of his being the son of the vendor.
In so far as the second point is concerned the learned counsel has not pressed it
understandably due to the reason that the latest decisions of this Court, vis-a-vis, the date
of decree in this case, go against him. Regarding the first plea when questioned: as to
what is the error in the findings by the High Court which nonetheless remains finding of
fact, he only stated that the relationship of respondent with the vendor as son and father
respectively has not been established through a legal proof. The argument is based on the
assessment and interpretation of certain entries in the identity card of the respondent.
When questioned; as to whether this alone was the evidence in this case, learned counsel
was unable to say that there was no other evidence. Obviously because the I plaintiff had
himself appeared as his own witness and had made a statement on] oath, this would not
be treated as such a piece of evidence as could be covered by the general argument that
the judgment in favour of the respondent suffered from illegal admission of evidence. A
deposition on oath by a party in his own favour nevertheless remains evidence. These
aspects of the case were not given proper attention by the learned Courts below. We also
repeatedly asked the learned counsel: whether, it was not a case of -the appellants
admitting the respondent to be the son of the vendor but objecting to the manner in which
High Court had found it so. He did not contradict the factual supposition in the question
and insisted that even if it was so it was the burden of the respondent to prove the alleged
relationship, in a lawful manner. Leaving aside the fact that there is no illegality in the
manner the relationship between the vendor and respondent/plaintiff has been established,
we are unable to agree with the proposition of law canvassed by the learned counsel that
even if the appellants are unable to challenge before a higher forum the correctness of the
finding, it would be liable to be set aside merely because the finding has been reached
through an improper or illegal procedure. Such a plea is no more acceptable in Courts of
law as it runs against many mandates in our Constitutional set-up which are based on
Islamic jurisprudence, philosophy and law. Thereunder it cannot be denied that such a
plea would be untenable. Looked at from whatever angle there is no force in this appeal.
The same, accordingly, is dismissed. There shall be no order as to costs.
M.BA./M-1471/S Appeal dismissed.
Page No. 2 of 2
1991 S C M R 1371
Present: Nasim Hasan Shah and Ghulam Mujaddid, JJ
MUHAMMAD FAZIL and others--Petitioners.
versus
Mst. SUGHRAN BIBI and others--Respondents
Civil Petition No.641 of 1989, decided on 28th October, 1989.
(On appeal from the judgment, dated 17-4-1989 of the Lahore High Court, Lahore in
Regular Second Appeal No.618 of 1980).
Qanun-e-Shahadat (10 of 1984)--
----Art.163---Civil Procedure Code (V of 1908), S.100---Special oath by one of the

plaintiffs---Effect---During proceedings of second appeal, one of plaintiffs/appellant filed
application wherein he stated that if the specified defendant, swore on Holy Quran and
stated that consideration for the sale had been paid to the appellant, he would not object
to the decree passed in favour of defendants being maintained---Defendants accepted the
challenge and tool the special oath, whereupon High Court dismissed the second
appeal---Petitioners' plea in petition for leave to appeal, was that the plaintiff making the
offer of special oath, had been authorised to make it only on behalf of his four sisters and
himself, but he had no authority to make any statement in Court or compromise the suit,
appeal etc. on behalf of remaining three brothers viz. petitioners herein, and hence special
oath taken by the defendant did not bind them---Supreme Court, however, found that the
Advocate in second appeal was jointly engaged by all the plaintiffs including the present
petitioners and that such Advocate was present in Court throughout the proceedings;
special oath was taken bef9re him and order of Court was also passed in his presence--No
plea was raised before High Court to the effect that the appeal of present petitioners could
not be dismissed in pursuance of the statement on oath by the defendant, in pursuance of
the offer of their brother as the latter did not represent them--Supreme Court declined to
exercise .its discretionary jurisdiction to grant leave to appeal to petitioners on the basis
of plea raised by them, before the Supreme Court.
Ch. Ghulam Hasan, Advocate Supreme Court and Rana Maqbool Ahmad Qadri,
Advocate-on-Record for Petitioners.
Nemo for Respondents.
ORDER
NASIM HASAN SHAH, J.---This is a petition for leave to appeal directed against the
judgment of a learned Single Judge of the Lahore High Court passed in R.SA.No.618 of
1980.
The relevant facts are that Akbar Ali predecessor-in-interest of the petitioners herein had
instituted a suit to challenge Mutation No.868 sanctioned on 23-5-1974 claiming that the
sale of the land in dispute allegedly made by him in favour of the respondents for a sum
of Rs.2 lacs was fictitious, based on fraud, misrepresentation and without consideration
and was, therefore, liable to be annulled.
This suit was dismissed by the learned Civil Judge, Toba Tek Singh by his judgment
dated, 17-10-1978 and the appeal filed against the said judgment and decree too was
dismissed on 26-5-1980 by the, judgment of the learned Additional District Judge,
Faisalabad; whereupon he moved the High Court by a second regular appeal.
Page No. 1 of 3
During the proceedings of the second appeal Akbar Ali appellant filed a miscellaneous
application (C.M. No. 2493-D/87) under section 163 of the Qanun-e-Shahadat, 1984
wherein he challenged the respondents to deny the plaintiff-appellant's claim by taking a
special oath on the Holy Quran. In this connection, it was stated that if Muhammad
Akram, one of the defendants, who was a Haji (respondent No.3 herein) swore on the
Holy Quran and stated that the consideration for the sale viz. Rs.2 lacs had been paid to
the appellant, he would not object to the decrees passed in favour of the respondents
being maintained.
This challenge was not accepted by the respondents at that stage. But when the matter
later came up for hearing before the Court and the same offer was again made by the
appellants (the legal representatives of Akbar Ali by then deceased) it was accepted.
The offer was contained in the statement of Saif Ali son of Akbar Ali (one of the legal
representatives of the deceased-appellant) in the following terms:--
"Under tW6 above oath I make an offer to the respondents that if Haji Muhammad
Akram respondent No.3/defendant takes oath on the Holy Quran in the manner have
taken oath states that the defendants had made payment of the sum Rs.2,00,000 which
had been deposited by them in the Bank Account of the deceased appellant then this
appeal and the suit out of which this appeal has arisen may be dismissed and the decree
passed in favour of the respondents-defendants by the lower Court be kept intact and
maintained."
Haji Muhammad Akram, respondent No.3, as already stated, accepted, the offer and took
the special oath on the Holy Quran and stated as follows:--
"Under the above oath I state that the sum of Rs.2,00,000 was paid by me to the deceased
appellant Akbar Ali the father of Saif Ali who has just appeared and made a statement. In
view of my acceptance of the offer of Saif Ali and taking of oath in pursuance thereof and
making the statement on oath as called upon the appeal be now dismissed."
The learned Judge of the High Court thereupon dismissed the second appeal, directed
against the judgments and decrees dated 26-5-1980 and 17-10-1978 respectively passed
by the learned Additional District Judge, Faisalabad and the learned Civil Judge, Toba
Tek Singh with the result that the said judgments and decrees stood upheld.
In this petition for leave to appeal, Ch. Muhammad Hasan, learned Advocate for the
petitioners, has submitted that the special oath taken by Saif Ali did not bind the present
petitioners because Akbar Ali deceased was succeeded by 4 sons (three petitioners and
Saif Ali) and 4 daughters. Saif Ali, who made the offer, however, had been authorised to
make it only on behalf of the four daughters and himself but had no authority to make
any statement in Court or compromise the suit, appeal etc. on behalf of the remaining
three brothers (the petitioners herein) and hence the special oath on the Holy Quran taken
by Saif Ali did not bind them. This aspect, according to the learned counsel, was
overlooked by the learned Judge of the High Court.
However, we find that Mr. Muhammad Nasrullah Warraich Advocate represented not
only Saif Ali and his 4 sisters in the High Court but he was the Advocate of the three
petitioners before us. Mr. Warraich was present in Court throughout the proceedings, all
which took place before him and the order of the Court was also passed in his presence.
However, no plea was raised before the learned Judge in the High Court to the effect that
the appeal of the present petitioners could not be dismissed in pursuance of the statement
on oath made by Haji Muhammad Akram, respondent No.3 in pursuance of the offer of
their brother Saif Ali, as the latter did not represent them.
We also observe that even Akbar Ali (the father of the three petitioners) had in his
application under section 163 of Qanun-e-Shahadat, 1984 himself offered that if the
special oath on the Holy Quran was taken by Haji Muhammad Akram, respondent No. 3
and he affirmed that the consideration had been paid, his second appeal may be
dismissed. In this background it was natural to think that the offer being made by Saif Ali
son of Akbar Ali was being made on behalf of all his legal representatives. The very fact
Page No. 2 of 3
that Mr. Nasrullah Warraich, Advocate, who was representing all the legal representatives
(including the three petitioners) did not assert before the learned Judge of the High Court
that the said three petitioners were not bound by the statement of Haji Muhammad Akram
made after taking the special oath on the Holy Quran shows that at that stage everybody
understood that the matter was to be decided on the basis of the special oath.
In these circumstances, we are not inclined to exercise our discretionary jurisdiction to

grant leave to appeal to the petitioners herein on the basis of the plea raised by them
before this Court.
The result is that this petition fails and is dismissed hereby.
A.A./M-1178/S Leave refused.
Page No. 3 of 3
PLD 1990 Supreme Court 83
Present. Ghulam Mujaddid and Saad Saood Jan, JJ
Criminal Appeal No.119 of 1988
Mst. BASHIRAN BIBI-- Appellant
versus
NISAR AHMED and others-- Respondents
Criminal Petition No.60 of 1989
Mst. BASHIRAN BIBI-- Appellant
versus
GHULAM MOHY-UD-DIN and others-- Respondents
Criminal Miscellaneous Petition No.15-R of 1989 in Criminal Appeal No.119 of 1988
Mst.BASHIRAN BIBI-- Appellant
versus
NISAR AHMAD KHAN and others-- Respondents
Criminal Appeal No.119 of 1988, Criminal Petition No.60 of 1989 and Criminal
Miscellaneous Petition No.15-R of 1989 in Criminal Appeal No.119 of 1988, decided on
15th April, 1989.
(From the order of the Lahore High Court, Multan Bench dated 28-6-1988 in Criminal
Miscellaneous No.SW-B/88).
(a) Criminal Procedure Code (V of 1898)--
S. 497 --- Constitution of Pakistan (1973), Art. 185---Bail --- Supreme Court though is
reluctant to interfere in bail and similar other matters where exercise of judicial discretion
is concerned, yet in exceptional cases where evidently either a provision of law has been
misconstrued or wrongly applied or the decision is contrary to the principles laid down by
Supreme Court as well as those governing the safe administration of criminal justice, than
in the interest of justice it is the Constitutional obligation of Supreme Court to set the
matter right.
Hafiz Khuda Bakhsh and another v. State PLD l9kg SC 413: Arbab Ali v. Khamiso and
others 1985 SCMR 195; Shahid Arshad v, Muhammad Naqi Butt and 2 others 1976
SCMR 360 and Shahadat Ali v. Mubarik Shah and another PLD 1986 SC 347 ref.
(b) Criminal Procedure Code (V or 1898) --
--- S. 497(2) --- Further inquiry-- Expression "further inquiry " is not to be taken lightly
nor is to be extended unnecessarily.
Arbab Ali v. Khamiso and others 1985 SCMR 195 ref.
(c) Qanun-e-Shahadat (10 of 1984)--
---Art.163 --- Procedure of swearing on Holy Quran (oath proceedings) is not applicable
in criminal proceedings.
(d) Criminal Procedure Code (V of 1898)--
Page No. 1 of 6
--- S. 497--Qanun-e-Shahadat (10 of 1984), Art. 163 --- Oath --- Taking oath on Holy
Quran --- Sanctity of the Holy Quran is such that it cannot be brought in oath or such like
matters depending upon convenience or whim of a party --- High Court when seized of
only a bail matter was not right to countenance the procedure whereby one of the accused
was permitted to take oath in a mosque with regard to guilt or innocence of himself and
other accused persons --- Approval of such a procedure by High Court would throw entire
administration of criminal justice into-disarray due to prevalent moral standards --- Such
procedure was likely to prejudice the trial itself which was to be held by a Court
subordinate to High Court.
(e) Criminal Procedure Code (V of 1898)--
--- S. 497(2) --- Further inquiry --- Mere filing of affidavits by certain Advocates would
riot attract the expression "further inquiry" nor would it amount to two versions ---
Evidentiary value of such evidence should be left to be determined by Trial Court.
(f) Criminal Procedure Code (V of 1898)--
--- S.497(5) --- Offence of which accused had been charged was non-bailable and
punishable with death --- Medico-legal report of lady complainant was not mentioned in
the impugned order according to which she had seven injuries on her person which prima
facie supported her version as disclosed in F.I.R.--Accused, were not entitled to bail in
circumstances and impugned bail granting order was set aside.
(g) Criminal Procedure Code (V of 1898)--
S. 497(2) --- Bail --- Expression "further inquiry"---Requirement --- Pre-condition for
grant of bail on ground of further enquiry is that Court comes to a definite conclusion that
there are no reasonable grounds for believing that accused had committed a non-bailable
offence --- Without such finding bail cannot be allowed under subsection (2) of S.497,
Cr.P.C. on mere ground that there are sufficient grounds for further enquiry.
Ch.Khalil-ur-Rehman, Senior Advocate Supreme Court and. Sh.Salabud Din,

Advocate-of-Record for Appellant (in Criminal Appeal No.119 of 1998 and Criminal
Petition No. 60 of 1989).
Raja Muhammad Anwar, Senior Advocate Supreme Court, Raja Akhtar, Advocate
Supreme Court, Manzoor Illahi Advocate-on-Record (absent) and 'Ch .Muhammad
Aslam, Advocate-on-Record for Respondents (in Criminal Appeal No.119 of 1988 and
Criminal Petition No-60 of 1989 are in Criminal Miscellaneous Petition No. 15-R of
1989.
Muhammad Akhtar, Additional Advocate-General, Rao M.Yousaf khan,

Advocate-on-Record (absent) and Abdus Sainad Hashm Advocate-on Record for the
State (in Criminal Appeal N0.119 of 1988).,
JUDGMENT
GHULAM MUJADDID, J.--Mst. Bashiran Bibi wife of Ali Muhammad, resident of

Chak No.105/7-R, Sahiwal who lodged report on 28-1-1988 challenged the order of the
Lahore High Court, Multan Bench, dated 2S~6-1988 whereby respondents Nisar Ahmad
Khan, Muhammad Akram, Muhammad Siddique, Sajjad Hussain, Muzammil Hussain,
Muhammad Shaft, Ahmad Ali and ,Khadirn granted by this Court,
The connected petition is also by her but that is still at leave stage. In this she has
impugned the order of the Lahore High Court Multan Bench dated 1-2-1989 passed in
Criminal Miscellaneous No.1070-CB/88 whereby her application for cancellation of bail
allowed to Ghulam Mohy-ud-Din and Shahbir Hussain was dismissed.
Page No. 2 of 6
The third petition is by the accused who had been taken into custody by order dated
10-8-1988 of this Court. They Pray that they be admitted to bail.
Mst. Bashiran lodged report at 4-30 pm. at Police Station Harappa District Sahiwal on the
date already mentioned above This pertained to what had h4ppened to her a day before.
On 27-1-1988, she along with her son Irshadul Haq was sitting in her house whereas her
husband Ali Muhammad had gone to the fields.
All of a sudden, Nisar Ahmad, Muhammad Akram, Muhammad Siddique, Sajad Ahmad
armed with Sotas; Muzarnmil with pistol trespassed into her house. At that time Mst.
Bashirah was busy cooking.
Muhammad Siddique caught hold of her by her hair and told that her son Ehsanul Haq
had insulted his, daughter.
Ali the accused then dragged her out of her house in the street where Muhammad Shaft,
Ahmad Ali and Khadirn Hussain were standing. All of them caught hold of her and took
her to the Baithak of Shabbir Hussain. Ghulam Mohammad of Ghulam Farid resident of
the same village was also present.
There Shabbir Hussain and Ghulam Mohyuddin tore her clothes and she was stripped.
She was then ordered to dance. Bashiran beseached for mercy. Instead she was beaten-
She was told that she had to give a naked performance, otherwise she would not be
spared. Then she was taken to the Bazar with not a stitch on. Her son Irshadul Haq raised
hue and cry. Abdul Sattar. Muhammad, Sarwar, Nazir Ahmad and Ali Muhammad her
husband came there. They requested the accused not to treat a Muslim lady in such like
manner. The accused threatened that if anybody dared to report the matter to the police,
he would not be left alive.
Mst. Bashiran was left in that condition. Her husband gave her a sheet with which she
covered herself and went home.
The motive for the incident was that on 26-1-1988 Mohammad Siddique's daughter was
instrumental in letting her goats ' the fodder belonging to Bashiran. Bashiran's son
Ehsanul Haq had stopped her from doing so. Mohammad Siddique felt offended. The
accused party acted in retaliation.
Before discussing the contentions of the learned counsel in the three matters, we would
first of all like to dispose of the petition for leave to appeal by Mst. Bashiran.
Learned counsel did not press this petition against Shabbir Hussain. So far as respondent
Ghulam Mohyuddin is concerned, he was placed in column No. 2 by the police. On this
ground as well as other relevant facts pertaining to his case, we don't think that the bail
allowed to him is to be cancelled. Hence Court petition No. 60/89 by Mst. Bashiran is
dismissed.
Now we take up the appeal of Mst. Bashiran. Ch. Khalil-ur-Rehman,, learned counsel for
the appellant, took us through the impugned order-, referred in the F.I.R and the medico
legal report of the first informant.
He submitted that the discretion exercised by the learned a judge was neither in
Accordance with law the principles laid down by this Court.
Learned counsel submitted that the offence of which the respondents have been charged
was punishable with death. He contended that the learned Judge misconstrued section
497 Cr.P.C.
Learned counsel submitted that the sole reason which prevailed with the learned Judge
was, "the question as to the guilt or otherwise of the petitioners requires further inquiry".
Page No. 3 of 6
It was argued that before extending the concession to the accused in a non-bailable
offence punishable with death, it was necessary to examine the entire subsection (2) to
section 497 Cr.P.C. keeping in view the allegations and other relevant facts like .the
medico-legal report in the instant case. In support of this learned counsel relied on the
case of Hafiz Khuda Bakhsh and another v. The State (PLD 1988 SC 413) and Arbab Ali
v. Khamiso and others (1985 SCMR 195).
Raja Mohammad Anwar, learned counsel for the respondents contended that the appeal
merits dismissal because this Court hardly interferes in the discretion exercised by the
High Court in such like matters. According to the learned counsel, the High Court
considered all the pros and cons of the case and then, thought it fit to release the accused
on bail. In Support of this he relied on the case, of Shahid Arshad v. Muhammad Naqi
Butt and 2 others (1976 SCMR 360) especially on the following observation:
In these circumstances although we are not happy about the order passed by the learned
Single. Judge of the High Court, we do not think it advisable to interfere with his order at
this stage, If at any time any one of the said two respondents misuses the privilege of bail
it will be open to the petitioner to approach the High Court for cancellation of bail."
Learned counsel laid great stress on the fact that the appellant was not, even entitled to
the indulgence by this Court as she concealed some very important fads. Learned counsel
submitted that had these facts been brought to the notice of this Court the leave would not
have been granted. He relied on the dictum of this Court in the case of Shahadat Ali v.
Mubarik Shah and another (PLD 1986 SC 347) where it was observed as under:--
"After hearing the learned counsel for the appellant and the respondents, we consider that
respondent No.1 has been guilty of suppression of material facts for which no plausible
explanation is forthcoming. Such a misrepresentation or suppression is likely to result in
grave, miscarriage of justice apart from its being open to great abuse by the parties. A
person indulging in it cannot be allowed to reap its benefits or to enjoy its result.”
It was next contended that the parties specially the complainant's husband voluntarily
chose to get matter decided by oath on Holy Quran. The accused-respondents accepted
this offer. They swore about their innocence and that the incident was false. Thereafter
neither the appellant nor husband were left with any grievance.
Learned counsel submitted that number of Advocates filed affidavits about the innocence
of the accused Ch.Khalil-ar-Rehman, learned counsel for the appellant made statement at
the Bar that nothing was concealed from this Court at leave stage; all the relevant facts on
record were brought to the notice of this court and It was after that the leave was granted.
We have no reason to doubt the statement at bar of the senior advocate of this Court.
It is correct that this Court is reluctant to interfere in bad and similar other matters where
exercise of judicial discretion is concerned but in exceptional cases where the interest of
justice demands and it is evident that either a provision of law has been misconstrued or
wrongly applied or the decision is contrary to the principles laid down by this Court as
well as those governing the safe administration of criminal justice then it is the
Constitutional obligation of this Court to set the matter right.
After hearing learned counsel for the parties as well as the Additional Advocate-General,
we are of the view that subsection (2) to section 497 Cr.P.C. has not been properly
appreciated by the learned Judge.
In the case of Arbab Ali v. Khamiso and others (supra), it was observed:--
"There are certain other features also in this case which have not been attended in the
High Court before giving a verdict that it was a case of "further inquiry". It needs to be
clarified that bail can be allowed (in a case otherwise allegedly falling under the
prohibition counted in subsection (1) of section 497) under subsection (2) of section 497,
Cr. P , C. when ther6 are sufficient grounds for further inquiry into the guilt of the
accused but only on the condition when the Police Officer or the Court at any stage of
Page No. 4 of 6
investigation, inquiry or trial, as the case may be, comes to a definite conclusion that
there are no reasonable grounds for believing that the accused had committed a
non-bailable offence. Without this finding bail cannot be allowed under subsection (2) on
mere ground that there are sufficient grounds for further inquiry. This aspect of the
relevant law has also not been brought to the notice of the learned Judge of the High
Court."
It is therefore obvious that the expression, "further inquiry' is not to be taken lightly nor is
to be extended unnecessarily.
The material before the High Court while considering the question of bail was the first
information report, nature of the offence, the medico-legal report as well as the defence
version.
The learned Judge in his order dated 1-2-1989 referred to certain proceedings where an
offer was made to swear about the innocence of the accused on Holy Quran which was
accepted by the accused. There is also reference of the affidavits of certain Advocates on
behalf of the accused.
Nevertheless, the learned Judge lost sight of the fact as to whether the procedure of
swearing on Holy Qur'an was applicable in criminal proceedings.
Article 163 of Qanun-e-Shahadat is to the following effect:----
"Acceptance or denial of claim on oath:--
(1) When the plaintiff takes oath in support of his- claim, the Court shall, on the
application of the plaintiff, call upon the defendant to deny the claim on oath.
(3) Nothing in this Article applies to laws relating to the enforcement of Hudood or other
criminal cases.-
It is, therefore, obvious that oath proceedings in the instant case were not warranted by
law. This position is conceded by the learned Additional Advocate-General.
According to the order dated 1-2-1989, it was the complainant's husband and the
Advocate who suggested taking of the oath. There is no mention in the order as to
whether Mst. Bashiran was also party to that.
There could be lost of considerations for the husband of the complainant to make such an
offer.
The sanctity of the Holy Quran is such that it cannot be brought in such like matters
depending upon the convenience or whim of a party.
We wish to observe that the High Court was not right to countenance, when seized of
only a bail application, the procedure whereby one of the accused was permitted to take
oath in a mosque with regard to the guilt or innocence of himself and the other accused
persons.
Moral standards as they are these days the approval of such a procedure by the High
Court would throw the entire administration of criminal justice into disarray.
Apart from that, the said procedure was likely to prejudice the trial itself which was to be
held by a Court subordinate to the High Court. We would, therefore, add that the trial
Court should entirely ignore the proceedings that took place in the High Court and
proceed to determine the guilt or innocence of the persons in the light of the evidence
recorded by it.
Page No. 5 of 6
The mere fact that certain Advocates filed affidavits would not attract the expression
"further inquiry' nor would it amount to two versions. In a case like this it should be left
to the trial Court to determine the evidentiary value such evidence.
The offence of which the accused-respondents have been charged is non bailable,
punishable with death. There is no mention in the impugned order of the medico-legal
report of Mst. Bashiran according to which she had seven injuries on her person which
prima facie lends support to the version of the appellant as disclosed in the first
information report.
For the foregoing reasons, we are of the view that the respondents were not entitled to the
concession of bail. The impugned order is set aside and the appeal is allowed.
The petition filed by the petitioners for bail is hereby dismissed.
M.B.A/B-135/S Order accordingly.
Page No. 6 of 6
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1

163 Qanun-e-Shahadat

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

163 Qanun-e-Shahadat

Uploaded by

Copyright:

Available Formats

P L D 2011 Peshawar 112

Before Attaullah Khan, J

----Malicious prosecution---Damages, suit for---Burden of proof -Burden would lie upon

PLD 1993 Pesh. 72 and PLD 2006 Pesh. 206 ref.

(b) Oaths Act (X of 1873)---

PLD 1993 Pesh. 72 ref.

Noor Gul Khan Marwat for Appellant.

Sajid Nawaz Khan Sadozai for Respondent.

Date of hearing: 10th August, 2010.

S.AK./426/P Revisions dismissed.

Before Iqbal Hameedur Rahman, J

MUHAMMAD NAWAZ and another----Petitioners

Criminal Revision No.426 of 2009, heard on 30th June, 2009.

(a) Penal Code (XLV of 1860)---

----Ss. 302/148/149/109---Qanun-e-Shahadat (10 of 1984), Art.163--Criminal Procedure

(b) Qanun-e-Shahadat (10 of 1984)---

----Art. 163---Acceptance or denial of claim on bath---Procedure of swearing on Holy

Malik Ghulam-us-Saddain for Petitioners.

Ghulam Qadir Bari, A.P.-G. for the State.

Date of hearing: 30th June, 2009.

IQBAL HAMEED-UR-RAHMAN, J.---Through this revision petition, the

3. During the course of investigation, police on the basis of statements of Rai

N.H.Q./M-482/L Revision accepted.

Before Iqbal Hameedur Rahman, J

MUHAMMAD NAWAZ and another----Petitioners

Criminal Revision No.426 of 2009, heard on 30th June, 2009.

(a) Penal Code (XLV of 1860)---

----Ss. 302/148/149/109---Qanun-e-Shahadat (10 of 1984), Art.163--Criminal Procedure

(b) Qanun-e-Shahadat (10 of 1984)---

----Art. 163---Acceptance or denial of claim on bath---Procedure of swearing on Holy

Malik Ghulam-us-Saddain for Petitioners.

Ghulam Qadir Bari, A.P.-G. for the State.

Date of hearing: 30th June, 2009.

IQBAL HAMEED-UR-RAHMAN, J.---Through this revision petition, the

3. During the course of investigation, police on the basis of statements of Rai

N.H.Q./M-482/L Revision accepted.

Before Raj Muhammad Khan and Zia-ud-Din Khattak, JJ

LIAQ ZAMAN and another---Petitioners

FAZAL RAHMAN and 2 others---Respondents

Writ Petition No.727 of 2005, decided on 30th April, 2008.

Civil Procedure Code (V of 1908)---

Muhammad Safdar Khan for Petitioners.

Nemo for Respondents: Ex parte.

Date of hearing: 30th April, 2008.

ZIA-UD-DIN KHATTAK, J.---Fazle Rehman, plaintiff (hereinafter called as "the

H.B.T./49/P Petition allowed.

Before Maulvi Anwarul Haq, J

KHUSHI MUHAMMAD through L.Rs.----Petitioner

Mst. NAZIRA BIBI and 4 others----Respondents

Civil Revision No.2521 of 2006, heard on 4th September, 2007.

Qanun-e-Shahadat (10 of 1984)---

----Art. 163---Decision of a case on basis of oath---Offer and acceptance made in heat of

Sh. Naveed Sheharyar for Petitioner.

Malik Amjad Pervaiz and Zahid Aslam for Respondent No.1.

Tahir Munir Malik, A.A.-G.

Date of hearing: 4th September; 2007.

MAULVI ANWARUL HAQ, J.--- On 19-4-2003 Khushi Muhammad deceased

F.B. /K-31/L Petition dismissed.

B ef ore Muhammad Akhtar Shabbir, J

Mst. RASHIDA ABDUL REHMAN----Appellant

ZAHOOR HUSSAIN and 5others----Respondents

Regular Second Appeal No.84 of 2003, decided on 23rd February, 2007.