Summary: (a) Constitution of Pakistan, 1973----Art. 175F(1)(c)---Criminal Procedure Code (V of 1898)----S. 491---Leave to appeal against dismissal of habeas corpus petition for recovery of alleged detenue/daughter---Scope---Petitioner/father sought recovery of his daughter on the plea that she was a Christian minor and had been taken into unlawful custody by respondent, who claimed to be her husband---Courts below dismissed the petition on the basis of the girl’s voluntary statement under S.164, Cr.P.C. and her assertion that she had contracted marriage of her free will---Federal Constitutional Court held that where the alleged detenue had repeatedly appeared before competent fora and unequivocally stated that no abduction had taken place and that she had married voluntarily, her custody with the person claiming to be her husband could not, in summary proceedings under S.491, Cr.P.C., be termed illegal or unlawful---Question whether Nikahnama was forged, or whether investigation required transfer, pertained to criminal process and could not by itself justify habeas corpus relief---Leave was refused and petition was dismissed. (b) Muslim Personal Law---Marriage between Muslim male and Christian female---Validity---Petitioner contended that his Christian daughter could not lawfully marry a Muslim male---Held, contention was misconceived and contrary to settled principles of Islamic law---A Muslim male may validly contract marriage with a Christian woman, being from Ahl al-Kitab---Such principle stood recognized in earlier Supreme Court authorities and classical juristic exposition---Court held that objection to marriage merely on the basis of difference of religion was without substance. Cited Cases: Mrs. Marina Jatoi v. Nuruddin K. Jatoi and others PLD 1967 SC 580. Mst. Zainab Bibi and others v. Mst. Bilqis Bibi and others PLD 1981 SC 56. (c) Constitution of Pakistan, 1973----Art. 189---Federal Constitutional Court---Precedential value of judgments of Supreme Court of Pakistan after establishment of Federal Constitutional Court---Held, judgments of the former Supreme Court of Pakistan do not bind the Federal Constitutional Court as a matter of absolute precedent under the restructured constitutional hierarchy, but continue to carry great persuasive value where they are based on sound reasoning, are consistent with constitutional text and structure, and do not offend fundamental rights or evolved constitutional values---Doctrine of stare decisis was not abrogated but recalibrated in light of constitutional supremacy---Departure from earlier Supreme Court precedent must be express, reasoned and principled, and may be justified where such precedent is manifestly inconsistent with the Constitution, undermines fundamental rights, reflects judicial overreach, becomes incompatible with evolved constitutional values and democratic norms, or where any other compelling reason advances the cause of justice. (d) Muslim Family Laws Ordinance (VIII of 1961)----S.1(2)---Marriage---Conversion to Islam---Effect---Though marriage of a Muslim male with a Christian female is permissible in principle, solemnization and registration under the Muslim Family Laws Ordinance is confined to Muslim citizens---Respondent’s stance was that the girl had embraced Islam before marriage---Affidavit appended with Nikahnama and subsequent certificate issued by a religious institution were produced to show conversion---Held, faith is a personal matter; once a person openly professes adherence to Islam, ordinarily no roving inquiry into the sincerity or motive of conversion is warranted in such proceedings---No specific ritual is indispensable beyond declaration and profession of belief---Where girl herself acknowledged correctness of Nikahnama and declared conversion, Court would not undertake deeper inquiry into genuineness of conversion in summary jurisdiction---Marriage was, prima facie, validly solemnized under the Ordinance. Cited Cases: Mst. Zarina and another v. The State PLD 1988 FSC 105. Tariq Masih v. The State 2004 PCr.LJ 622. (e) Child Marriage Restraint Act, 1929---Child marriage---Effect on validity of marriage---Petitioner asserted that alleged detenue was about twelve years of age and, therefore, incapable of contracting valid marriage---Held, the Act of 1929 restrains and criminalizes solemnization of child marriage, but does not expressly render such marriage void or voidable---In absence of explicit statutory language invalidating the marriage, its legal status remains unaffected---Where legislature intends to override settled personal law, it must do so in clear and unequivocal terms; such intention cannot be inferred from silence---Therefore, even assuming minority, marriage would not automatically become void merely because it was contracted in contravention of the Act of 1929. Cited Cases: Mushtaq Ahmad v. Mirza Muhammad Amin and another PLD 1962 W.P. Karachi 442. Mst. Bakhshi v. Bashir Ahmad and another PLD 1970 SC 323. Mauj Ali v. Syed Safdar Hussain Shah and another 1970 SCMR 437. Nasreen Bibi v. Station House Officer and others 2024 PCr.LJ 2058. Muhammad Khalid v. Magistrate 1st Class and others PLD 2021 Lahore 21. Muhammad Azam v. The State and another 2018 PCr.LJ Note 175. Muhammad Safeer v. Additional Sessions Judge (West) Islamabad PLD 2018 Islamabad 385. Allah Nawaz v. Station House Officer PLD 2013 Lahore 243. Allah Bakhsh v. Safdar and others 2006 YLR 2936. Ghulam Qadir v. The Judge Family Court, Murree 1988 CLC 113. Ghulam Hussain v. Nawaz Ali and another 1975 PCr.LJ 1049. (f) Evidence---Age of alleged detenue---Delayed birth documents---Probative value---Petitioner relied on birth certificate and child registration certificate to show that his daughter was born on 07.10.2012---Held, both documents had been procured many years after the alleged date of birth and no satisfactory explanation for such inordinate delay was furnished---Delayed registration of birth, unless supported by independent and reliable material, is susceptible to manipulation and its evidentiary value is diminished---Further, inconsistency in petitioner’s own stance regarding age in the F.I.R., close birth dates shown for the alleged detenue and her next sibling, entry of a different date of birth in the Nikahnama, and the girl’s own denial of minority materially weakened petitioner’s case---In such circumstances, delayed documents could not be treated as sole basis for holding that the girl was minor, particularly when she appeared physically before the Court and seemed to be of more advanced age. (g) Criminal Procedure Code (V of 1898)----S.164---Statement of alleged detenue---Evidentiary significance in habeas corpus proceedings---Girl had recorded statement before Magistrate that nobody abducted her, no zina was committed, and that she had married respondent of her own free will; she had also made a similar statement in proceedings under Ss.22-A & 22-B, Cr.P.C.---Held, such consistent voluntary statements before judicial fora carried significant value in determining whether custody was illegal---Where marriage was acknowledged and free will asserted, summary court was justified in declining to infer unlawful detention. (h) Criminal Procedure Code (V of 1898)----S.491---Summary nature of proceedings---Limitations---Question whether Nikahnama was forged or unregistered, and whether offences were made out in investigation, could not properly be adjudicated in proceedings of interim and summary nature under S.491, Cr.P.C.---Such issues were to be pursued before competent criminal court or through appropriate investigative remedies---Habeas corpus jurisdiction is not designed to conclusively determine complex factual controversies touching upon validity of marriage documents. (i) Res judicata---Constitutional petition for recovery of daughter---Earlier writ petition on same cause having attained finality---Effect---Petitioner had earlier filed writ petition for recovery of same daughter from same alleged custody on same foundational ground, which was dismissed by High Court after considering her statement under S.164, Cr.P.C. and holding that her custody with husband was not illegal or unlawful---Said finding was not challenged before higher forum and, therefore, attained finality---Held, subsequent proceedings on same issue were barred by principle of res judicata, and petitioner could not re-agitate the same question through another round of litigation. Cited Case: Pir Bakhsh v. The Chairman, Allotment Committee PLD 1987 SC 145. (j) Constitutional law---Fundamental rights---Reliance on High Court judgment concerning discriminatory definition of “child”---Relevance---Petitioner relied upon PLD 2025 Lah. 1---Held, said judgment had no application to the controversy in hand, as that case concerned challenge to discriminatory definition of “child” prescribing different minimum ages for males and females with reference to provincial legislation, whereas present case concerned legality of custody and alleged invalidity of marriage in the factual setting of Punjab law. Disposition: Leave to appeal was refused and the petition was dismissed; however, observations made in the judgment were not to prejudice or impede criminal proceedings, if any, before the competent criminal court in accordance with law. ------ "The Child Marriage Restraint Act, 1929 merely criminalizes the solemnization of a child marriage but does not expressly declare such a marriage to be void or voidable. The binding force of judicial precedent is not derived from institutional seniority but from the constitutional hierarchy itself. Since, the supremacy of constitutional adjudication now vests in this Court, therefore, all courts, including the Supreme Court of Pakistan, are bound by its pronouncements. However, this Court would ordinarily respect and follow the earlier constitutional jurisprudence evolved by the Supreme Court of Pakistan, unless it is established that the same is manifestly erroneous, inconsistent with the constitutional text or scheme, or incompatible with fundamental rights and contemporary constitutional values. "

Summary: (Against the orders dated 10.03.2022 passed by the High Court of Sindh, Circuit Court Larkana in 2nd Civil Appeal No. S-06 of 2019). (a) Civil Procedure Code (V of 1908)--- ----S. 11---Res judicata, doctrine of---Maxim "Nemo debet bis vexari pro una et eadem causa" and "interest reipublicae ut sit finis litium"---Applicability---Far-sightedness or prudence ingrained in doctrine of res judicata protects against never ending litigation and ensures finality, thereby saving parties from rigors of protracted or multiplicative proceedings---Cause of action finally adjudicated on merits must not be re-litigated---Doctrine of res judicata so connotes "claim preclusion" whose indispensable elements include that the erstwhile judgment must be valid and final between the parties and the same issue must not be brought again for re-litigation---As such the rule is essential to avert repetitive litigation and to ensure justice, equanimity and dependability in judicial proceedings by curbing frivolous and vexatious litigation often initiated with mala fide intention or ulterior motives just to drag opponents in Courts for reopening matters already conclusively decided---Simultaneously, principle of res judicata also lightens the Court's docket and helps eliminate time consuming and meritless litigation---Maxim "nemo debet bis vixari pro una et eadem causa" i.e. no man should be vexed twice for the same cause and "interest reipublicae ut sit finis litium" i.e. it is in best interest of state to put an end to litigation---What is generally done or believed along the lines of conventional astuteness is that one judicial contest is sufficient for litigants to lodge their claims or put forward a defense rather than litigating for one and the same cause of action between the same parties for the same subject matter again and again. (b) Civil Procedure Code (V of 1908)--- ----S. 149---Court fee, deficiency of---Expression "at any stage"---Scope---Expression "at any stage" alluded to in section 149 C.P.C. accentuates that deficiency if any on account of court fee can be ordered to be made good by Appellate Court at any stage of proceedings in appeal. (c) Specific Relief Act (I of 1877)--- ----Ss. 42 & 54---Civil Procedure Code (V of 1908), Ss. 100, 115 & O.VII, R.11---Suit for declaration and injunction---Concurrent findings of facts by two Courts below---Principle---Petitioners were aggrieved of judgments and decrees passed by all Courts below against them---Validity---If concurrent findings recorded by lower fora were found to be in violation of law, or based on misreading or non-reading of evidence, they could not be treated as so sacrosanct or sanctified that they could not be reversed by High Court in its revisional or Constitutional jurisdiction or in a second appeal, as a corrective measure come what may---Where glaring errors, non-reading or misreading of evidence or any legal and jurisdictional issues arise, the stumbling block of doctrine of concurrent findings cannot shield a flawed or erroneous decision---Trial Court possesses distinctive position to adjudge trustworthiness of witnesses and cumulative effect of evidence led in the lis---Appellate Court accords deference to such findings, which are not overturned unless found erroneous or defective---It is also not within the domain or function of Appellate Court and or High Court to re-weigh or re-interpret evidence but they can examine whether jurisdiction or order attains benchmark of an unflawed judgment and whether it is in consonance with the law and evidence and free from unjust and unfair errors apparent on the face of record---If the concurrent findings are found to be in violation of law or are based on flagrant and obvious defect floating on the surface of the record then it can be reversed as a corrective measure without undue regard to the fact that matter culminated in concurrent findings---Supreme Court set aside concurrent findings of facts by all Courts below and remanded the matter to Trial Court for decision afresh on merits---Appeal was allowed. Siddique Khan v. Abdul Shakoor Khan PLD 1984 SC 289; Abdul Hamid and another v. Dilawar Hussain alias Bhalli and others 2007 SCMR 945; Mian Nawaz Sharif's case PLD 1993 SC 473; Mst. Iqbal Begum's case PLD 1993 Lah. 183; Deepchand v. Land Acquisition Officer AIR 1994 SC 1901; Alcon Electronics Pvt. Ltd. v. Celem S.A. AIR 2017 SC 1; Sayyed Ayaz Ali v. Prakash G. Goyal 2021 (7) SCC 456; Diwan Bros. v. Central Bank of India, Bombay AIR 1976 SC 1503; Ahmed Ali Talpur v. Sub-Registrar Latifabad, Hyderabad PLD 2025 SC 302; Kh. Muhammad Fazil v. Mumtaz Munnawar Khan Niazi (decd.) through L.Rs. 2024 SCMR 1059; Meeru Khan v. Mst. Naheed Aziz Siddiqui and others PLD 2023 SC 912; Government of K.P.K. v. Mehmood Khan 2017 SCMR 2044; Homoeo Dr. Asma Noreen Syed v. Government of the Punjab through its Secretary Health Department and others 2022 SCMR 1546; Rana Muhammad Asif Tauseef v. Election Commission of Pakistan 2022 SCMR 1344; Muhammad Aamir Khan v. Government of Khyber Pakhtunkhwa 2019 SCMR 1021 = 2019 PLC (C.S.) 1014; Chairman, NAB v. Muhammad Usman PLD 2018 SC 28; Iffat Jabeen v. District Education Officer (M.E.E), Lahore 2011 SCMR 437 = 2010 PLC (C.S.) 451; Muhammad Shehzad Malik v. Muhammad Suhail and another 2010 SCMR 1825; Fasih-ud-Din Khan and others v. Government of Punjab and others 2010 SCMR 1778; Section Officer, Government of Punjab, Finance Department v. Ghulam Shabbir 2010 SCMR 1425 = 2010 PLC (C.S.) 641; Government of NWFP v. Akbar Shah 2010 SCMR 1408; Land Acquisition Collector and 6 others v. Muhammad Nawaz PLD 2010 SC 745; Muhammad Shahban and others v. Falak Sher and others 2007 SCMR 882; Raja Hamayun Sarfraz Khan and others v. Noor Muhammad 2007 SCMR 307; Almas Ahmad Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore 2007 PLC 64 = 2006 SCMR 783; Muhammad Gulshan Khan v. Secretary, Establishment Division, Islamabad PLD 2003 SC 102 = 2003 PLC (C.S.) 201;B.I.S.E v. Salam Afroze PLD 1992 SC 263; Mst. Faheeman Begum (deceased) through L.Rs. v. Islam-ud-Din (deceased) through L.Rs. 2023 SCMR 1402 = PLJ 2024 SC 75 = PLJ 2024 SC 326;Ahmed Ali Talpur v. Sub-Registrar Latifabad, Hyderabad PLD 2024 SC 302 and United Bank Limited v. Jamil Ahmed 2024 SCMR 164 = PLC 2024 SC 50 rel. Nazar Akbar, Advocate Supreme Court for Petitioners. Habib ur Rehman Jiskan, Advocate Supreme Court and Abida Parveen Channar, Advocate-on-Record for Respondents Nos. 1 and 2. Nemo for Respondents Nos. 3 and 4. Date of hearing: 28th March, 2025.

Summary: (a) Civil Procedure Code (V of 1908) ---- S. 11, O. VII Rr. 11 & 13, S. 149 ---- Res judicata --- Rejection of plaint --- Fresh suit --- Scope and limitations Where a plaint is rejected under Order VII Rule 11, CPC, the rejection does not constitute adjudication on merits and, by fiction of law, is considered a “decree” appealable under Section 2(2), CPC. The Court held that such rejection does not preclude the institution of a fresh suit under Order VII Rule 13 CPC, provided it is not barred by limitation or the principle of res judicata. The doctrine of res judicata under Section 11 CPC requires a judicial determination that the matter was directly and substantially in issue in a previous suit between the same parties, and conclusively decided. Mere observations on title in a prior suit for damages do not bar a subsequent suit for possession and declaration, unless the ingredients of res judicata are strictly met. (b) Limitation Act, 1908 ---- Ss. 3, 5, 14 to 16, Art. 142 ---- Condonation of delay --- Applicability to suits --- Misconception of law --- Mixed question of law and fact The Court clarified that Section 5 of the Limitation Act applies to appeals and applications, not suits. Delay in filing a suit cannot be condoned under Section 5, but exclusion of time may be claimed under Sections 14 to 16 where applicable. In the instant case, the plaintiffs erroneously filed an application under Section 5 for condonation of delay in instituting the suit for possession. Nonetheless, the Court held that under Article 142 of the Limitation Act, the limitation period was twelve years from the date of dispossession, and the suit was within time. Dismissal of the suit by the Trial Court for being time-barred, without properly examining the cause of action, was declared a grave illegality. (c) Court Fees Act, 1870 ---- Ss. 4 & 6; Civil Procedure Code, 1908 ---- Ss. 148, 149 ---- Deficiency in court fee --- Discretion to allow cure --- Harmonious construction The Court held that a deficient court fee does not render a proceeding fatally defective. Under Section 149 CPC, the Court may allow payment of deficient court fee at any stage of the proceedings. Section 149 acts as a proviso to Sections 4 and 6 of the Court Fees Act, permitting the court to regularize proceedings upon payment of deficient court fee subsequently. The dismissal of the petitioners' appeal by the First Appellate Court without providing an opportunity to cure the deficiency was held to be erroneous and contrary to the principles laid down in PLD 1984 SC 289 (Siddique Khan v. Abdul Shakoor Khan) and AIR 1976 SC 1503 (Diwan Bros. case). (d) Civil Procedure Code (V of 1908) ---- Ss. 2(2), 96; O. VII R. 11 ---- Rejection of plaint vs. dismissal of suit --- Decree by fiction --- Scope of appealability The Court reiterated that rejection of a plaint under Order VII Rule 11 CPC is deemed a decree under Section 2(2) CPC, appealable under Section 96 CPC. However, such rejection must be based on a proper examination of whether the plaint discloses a cause of action, and whether the suit is barred by law or limitation. The Trial Court’s mechanical dismissal of the suit, without applying Section 3 of the Limitation Act or giving the plaintiff an opportunity to correct procedural defects, was declared unjustified. (e) Judicial duty --- Application of correct law --- Responsibility of judges irrespective of parties’ errors The Court emphasized that judges are duty-bound to apply the correct law, even if the parties or their counsel fail to point it out. Misguided legal advice or poor pleading does not absolve courts of their responsibility to administer justice according to law. The judge must “wear all laws on the sleeve of his robe.” Failure to address key legal provisions, such as limitation or res judicata, in a reasoned manner vitiates judicial orders. (f) Concurrent findings --- When revisable --- Misreading or non-reading of law or evidence --- Corrective jurisdiction of higher courts Concurrent findings of lower courts are not immune from interference where they suffer from legal infirmities, misreading, non-reading, or flawed application of law. The Supreme Court held that when lower courts ignore binding legal provisions or dismiss a suit on misconceived grounds, such findings must be set aside in exercise of appellate jurisdiction to prevent miscarriage of justice. Disposition: Petition converted into appeal and allowed; impugned orders set aside; matter remanded to Trial Court for decision on merits within six months. Cited Cases: • Siddique Khan v. Abdul Shakoor Khan (PLD 1984 SC 289) • Abdul Hamid v. Dilawar Hussain (2007 SCMR 945) • Ahmed Ali Talpur v. Sub-Registrar Latifabad, Hyderabad (PLD 2025 SC 302) • Kh. Muhammad Fazil v. Mumtaz Munnawar Khan Niazi (2024 SCMR 1059) • Meeru Khan v. Mst. Naheed Aziz Siddiqui (PLD 2023 SC 912) • Diwan Bros. v. Central Bank of India (AIR 1976 SC 1503) • Deepchand v. Land Acquisition Officer (AIR 1994 SC 1901) Cited Provisions: • Civil Procedure Code, 1908, Ss. 2(2), 3, 5, 11, 96, 148, 149, O. VII Rr. 11 & 13 • Limitation Act, 1908, Ss. 5, 14–16, Art. 142 • Court Fees Act, 1870, Ss. 4 & 6

Summary: (a) Civil Procedure Code (V of 1908), O. VII, R. 11 & O. II, R. 2 Res judicata—Scope and applicability in suits for partition The petitioner’s suit for possession through partition of their joint property was initially dismissed under Rule 11 of Order VII, CPC, on the ground that it was barred by the principle of res judicata, as an earlier declaratory suit regarding the same property between the same parties had been dismissed. The Supreme Court held that the principle of res judicata did not apply because the earlier suit was for a declaration under section 42 of the Specific Relief Act, 1877, and was not decided on merits. A right to partition is an independent legal right and cannot be barred based on a prior declaratory suit. The Court also dismissed the argument that the suit was barred under Order II, Rule 2, CPC, as the petitioner was not required to seek partition in the earlier litigation. Cited Laws: Section 42, Specific Relief Act, 1877 O. VII, R. 11, and O. II, R. 2, CPC (b) Partition of property—Independent legal right The Supreme Court clarified that the right to partition is an independent substantive right distinct from other claims regarding the same property. This right cannot be extinguished by invoking the principle of res judicata unless explicitly adjudicated in a prior suit. (c) Dismissal of plaint—Improper application of Order VII, Rule 11, CPC The Court noted that the dismissal of the plaint under Order VII, Rule 11, CPC, was unwarranted in the circumstances, as the issue of partition was not addressed on merits in the earlier declaratory suit. It directed the trial court to reinstate the suit and proceed from the stage where it was dismissed. Disposition: The petition was converted into an appeal and allowed. The judgments of the three lower courts were set aside. The matter was remanded to the trial court for proceedings on merits.

Summary: (a) Civil Procedure Code (V of 1908)--- ----S. 10---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Res judicata, doctrine of---Scope---Claim of the plaintiffs (two in number) was concurrently dismissed on the ground that the matter regarding suit-property was already settled by the Court of competent jurisdiction---Validity---It transpired from the record that against the present petitioners / plaintiffs (cited as defendants Nos. 27 and 26 respectively in previous suit), present respondents / defendants had earlier filed a suit for declaration that they were having a right to graze their cattle in the suit property according to the Wajb-ul-Arz and entries in the revenue record mentioning the suit-property as Khud Kasht were wrong---Said dispute had already been decided and had attained finality; but the present petitioners / plaintiffs ( who were then defendants Nos. 26 and 27) again brought the same matter before the court by challenging the entries of Wajib-ul-Arz being Dhaka Charagah rather than Dhaka Rakh---Suit-property was Dhaka Charagah and not Dhaka Rakh and the entries pertaining to Khud Kasht were wrong which were rightly corrected by the court --- Perusal of the previous litigation revealed that the entries to the extent of Khud Kasht in the revenue record qua khasra number 983 was challenged claiming it to be Dhaka Charagah which had already culminated into a decree in favour of the present respondents / defendants, therefore, the matter-in-issue, the parties, cause of action and parties in both the suits were the same which had been finally adjudicated and decided upon by the court of competent jurisdiction and was hit by the principle of res judicata and could not be re-opened---Petitioners failed to point out any illegality or irregularity in the impugned findings of the Courts below warranting interference of the High Court in limited revisional jurisdiction---Revision, being merit-less, was dismissed. (b) Specific Relief Act (I of 1877)--- ----S. 42---Suit for declaration---Entries in revenue record---Wajib-ul-Arz---Correction sought---Scope---Claim of the plaintiffs (two in number) was concurrently dismissed --- Validity --- Wajib-ul-Arz carries presumption of truth because Wajib-ul-Arz is part of the Record of Rights, and strong, unimpeachable evidence is required to counter and rebut such entries---Grazing rights of the inhabitants of the locality were duly embodied in the Wajib-ul-Arz and no evidence had been provided from either side suggesting any changes in the consistent entries of Wajib-ul-Arz--- Petitioners / plaintiffs failed to point out any illegality or irregularity in the impugned findings of the Courts below warranting interference of the High Court in limited revisional jurisdiction --- Revision, being merit-less, was dismissed. (c) Limitation--- ---- Entries in Revenue record---Wajib-ul-Arz---Correction sought---Limitation ---Claim of the plaintiffs (two in number) was concurrently dismissed --- Petitioners through the present suit had challenged the entries of Wajib-ul-Arz for the year 1965/1966 by filing a suit for declaration in the year 2000 which made the suit of the plaintiffs/petitioners hopelessly time barred--- Petitioners failed to point out any illegality or irregularity in the impugned findings of the Courts below warranting interference of the High Court in limited revisional jurisdiction ---Revision, being merit-less ,was dismissed. Malik Mahmood Akhtar and Gul Sherin Khan Jadoon for Petitioners. Khalid Rehman Qureshi for Respondents. Date of hearing: 11th November, 2024.

Summary: -----Quote: Articles 76 & 77 of Qanun-e-Shahadat Order, 1984: The law has provided a remedy for proving a document through secondary evidence which is an exception to general rule and only meant for the purpose to cater a genuine need and hardship. It cannot be allowed in routine or without complying with the requirements mentioned under section 65 of the Evidence Act of 1872 or Article 76 and 77 of Qanun-e-Shahadat Order, 1984. The contents of documents can only be proved through secondary evidence if the conditions mentioned under Article 76 are available, which should be satisfied first. This Article provides an alternate mode and method of proving the document which for various reasons could not be produced. When primary evidence is not available or produced, then law permits secondary evidence which remedy is designed for the protection of person who despite best efforts unable from the circumstances beyond his control to produce the primary evidence. Where a person is unable to bring the original document despite all reasonable efforts, the court is competent to admit secondary evidence but at the same time, this should also to be kept in mind that this benefit is not intended for a person who intentionally or with some ulterior motives or sinister objects refused to produce the document in court which is in his possession, power and control. Pre-requisites of gift: When and at which particular place, the declaration of the gift i.e., offer and acceptance was taken place, has not been proved by the petitioners/ defendants. Reliance is placed on the cases of “Muhammad Asghar and others Vs. Hakam Bibi through L. Rs and others” (2015 CLC 719(Lahore) “Mst. Kalsoom Bibi and another Vs Muhammad Arif and others” (2005 SCMR 135). Even, it has not been proved on record by the petitioners that the erstwhile predecessor Mukamil Shah has divested himself from the possession of the property, thus, they have failed to prove the alleged gift. -----Background: The petitioners filed a revision petition under Section 115 of the Code of Civil Procedure, 1908, challenging the District Judge, Chitral Lower’s decision dated 03.08.2023, which dismissed their appeal against the Senior Civil Judge’s judgment on 09.06.2021. The Senior Civil Judge had ruled in favor of the respondents (plaintiffs) in a suit filed in 2014, seeking a declaration of their shares in the legacy of Mukammal Shah. The plaintiffs, legal heirs of Mujeeb-Ur-Rahman (grandson of Mukammal Shah), claimed inheritance rights to the disputed property. The petitioners resisted the suit, citing prior gifts of the property by Mukammal Shah and invoking res judicata due to a previous suit by Mst. Sultania Bibi, also a legal heir, which was dismissed. -----Issues: 1- Validity of Gift Deed: Whether the disputed property was legally gifted by Mukammal Shah to certain family members before his death, thereby excluding other heirs from inheritance claims. -----2- Application of Res Judicata: Whether the dismissal of a prior suit by another legal heir, Mst. Sultania Bibi, on a similar claim constitutes constructive res judicata, preventing the current plaintiffs from challenging the ownership. -----3- Right to Inheritance: Whether the respondents, as legal heirs of Mujeeb-Ur-Rahman, are entitled to a share of the property despite the alleged gift deeds. -----Holding/Reasoning/Outcome: --Gift Deed Validity: The petitioners argued that the property was gifted by Mukammal Shah during his lifetime, evidenced by a deed recorded in 1965 with the Judicial Council. They contended that this deed validated the transfer of property, which was corroborated by testimony. However, the court emphasized that secondary evidence and Judicial Council records must be thoroughly validated, especially since the original witnesses to the deed were unavailable. --Constructive Res Judicata: The court examined the previous suit by Mst. Sultania Bibi and found that while her suit was dismissed, the petitioners’ reliance on this outcome as constructive res judicata was weak. The dismissal did not conclusively resolve the ownership question, particularly for other heirs who were not parties to the original suit. --Inheritance Rights of Respondents: The court upheld the lower courts’ decisions, affirming that the respondents, as legitimate heirs, had a right to claim their shares unless valid documentation proving the complete transfer of property could be produced. The petitioners failed to substantiate their argument of exclusive ownership through the gift deed conclusively. ------Citations/Precedents: --Res Judicata Principle: Dismissal of a prior suit on inheritance does not necessarily preclude future claims by different heirs if they were not parties to the earlier suit. --Inheritance Rights under Islamic Law: Legal heirs retain their rights to inheritance unless there is definitive proof of legal transfer, including an irrevocable gift with valid witnesses and documentation. --Secondary Evidence Admissibility: Secondary evidence, such as Judicial Council records, may be admitted but must meet strict criteria for authenticity and relevance, especially in the absence of primary witnesses.

Summary: (a) Civil Procedure Code (V of 1908): —S. 115, O. VI, R. 7 & S. 11—Res judicata—Pleadings—Maintainability of suit—Concealment of material facts—Revision jurisdiction—Scope. Plaintiff filed two suits regarding the same property with conflicting narratives—In F.C Suit No.118/2008, the plaintiff claimed leasehold rights from the Irrigation Department, whereas in F.C Suit No.171/2008, he asserted ownership by inheritance—Earlier suit (F.C Suit No.118/2008) was dismissed and not challenged, attaining finality—In the subsequent suit, the plaintiff deliberately concealed the earlier proceedings, violating the principle of res judicata under Section 11, C.P.C. and Order VI, Rule 7, C.P.C.—Pleadings are required to be consistent, and no party can set up contradictory claims in different suits concerning the same subject matter—The plaintiff failed to disclose material facts, undermining his bona fides—The principle of estoppel also applied, preventing the plaintiff from contradicting his earlier stance—The trial court and appellate court overlooked these key legal aspects while decreeing the suit—Revisional jurisdiction under Section 115, C.P.C., is invoked when findings of lower courts suffer from material irregularity, misreading, or non-reading of evidence—Judgments and decrees of lower courts were found unsustainable and were accordingly set aside. ----Cited Cases: 2000 MLD 1537 2000 CLC 1107 2012 YLR 156 2010 SCMR 17(3) 2015 CLC 393 2005 YLR 2608 1999 SCMR 2167 PLD 2009 Karachi 373 2002 YLR 989 1992 SCMR 786 2020 CLC 583 2011 SCMR 837 1986 CLC 770 2003 SCMR 501 2021 SCMR 305 2020 CLC 1219 2016 CLC 1090 ----Disposition: Revision application allowed—Judgments and decrees of the trial court and appellate court set aside—Suit filed by the respondent/plaintiff dismissed—Parties to bear their own costs.

Summary: (a) Civil Procedure Code (V of 1908) – S. 115 – Revisional jurisdiction – Concurrent findings – Interference by revisional court – Misreading, non-reading, and concealment of material facts- Concurrent findings of fact—Interference by High Court in revisional jurisdiction—Scope—High Court found that plaintiff/respondent filed two suits regarding the same property based on materially contradictory claims—In earlier suit (F.C. Suit No.118/2008), the plaintiff claimed to be a lessee of the Irrigation Department and admitted its ownership—In later suit (F.C. Suit No.171/2008), plaintiff asserted ownership by inheritance and alleged illegal possession by the Irrigation Department—Earlier suit was dismissed and not challenged, attaining finality—Second suit filed without disclosing pendency and dismissal of the earlier suit—Such concealment of material fact held to be fatal—Judgments and decrees of trial and appellate courts found to be vitiated by misreading, non-reading, and suppression of relevant facts—Violation of transparency and judicial candor warranted interference under S. 115, C.P.C.—Revisional court set aside concurrent findings and dismissed the suit. (b) Civil Procedure Code (V of 1908) – S. 11 & O. II, R. 2 – Res judicata – Bar to second suit – Same parties, same subject matter, different plea -Plea of res judicata—Bar to subsequent suit—Earlier suit filed by plaintiff on same subject matter and between same parties—Plaintiff adopted different plea in second suit by concealing the earlier litigation—Earlier judgment attained finality—Held, second suit barred under S. 11, C.P.C., and O. II, R. 2, C.P.C.—Plaintiff was not entitled to take mutually destructive pleas in separate suits regarding same property—Failure to challenge dismissal of earlier suit and deliberate concealment in subsequent suit amounted to abuse of process. Cited Cases: • 2000 MLD 1537 • 2000 CLC 1107 • 2012 YLR 156 (c) Qanun-e-Shahadat Order, 1984 – Arts. 111, 112, 113 & 114 – Judicial notice – Estoppel – Concealment – Effect Estoppel and judicial notice—Plaintiff’s contradictory claims in successive suits—One claiming lease from Government, other asserting ancestral ownership—Trial court failed to take judicial notice of prior suit and conflicting stance—Held, court must take judicial notice of prior proceedings and apply principle of estoppel under Art. 114, QSO, 1984—Plaintiff could not be allowed to approbate and reprobate—Such conduct undermines judicial integrity—Pleadings must be consistent; court cannot set up new case for party contrary to record—Present suit not filed with clean hands and stood vitiated by fraud and suppression. Cited Cases: • 2010 SCMR 17(3) • 2015 CLC 393 • 2005 YLR 2608 • 1999 SCMR 2167 • PLD 2009 Karachi 373 • 2021 SCMR 305 • 2020 CLC 1219 (d) Civil litigation – Obligation of full disclosure – Consequences of concealment – Duty of candor in pleadings -Duty of disclosure—Plaintiff’s failure to disclose earlier litigation on same property—Held, concealment of earlier suit amounts to hoodwinking the court and vitiates proceedings—Violation of Order VI, Rule 7, C.P.C.—Such concealment taints entire proceedings with illegality and renders decree unsustainable—Court reaffirmed principle that justice must not only be done but must be seen to be done—Litigant approaching court must do so with clean hands—Suppression of prior claim bars equitable relief. Disposition: Revision allowed; judgments and decrees of lower courts set aside; suit dismissed.

Summary: (a) Specific Relief Act (I of 1877) — Ss. 42 & 54 — Declaration and Permanent Injunction — Fraudulent Mutation — Burden of Proof — Secondary Evidence — Doctrine of Res Judicata. Plaintiffs filed a suit for declaration and permanent injunction, asserting ownership of agricultural land through an oral sale allegedly recorded by an Assistant Mukhtiarkar and later transferred via a registered sale deed—Revenue entries in favor of the plaintiffs were challenged by the defendant, claiming fraud and forgery in collusion with revenue officials—Trial Court decreed the suit, but the Appellate Court, after reassessment of oral and documentary evidence, found the mutation entries fraudulent, irregular, and manipulated—The plaintiffs failed to produce primary evidence, including attesting witnesses, mutation fee receipts, and credible supporting documentation—The Appellate Court relied on the testimony of revenue officials, scrutiny of mutation registers, and evidence of prior fraudulent transactions by the plaintiffs—Doctrine of Res Judicata applied, as prior judicial verdicts favored the defendants regarding possession and ownership—The Appellate Court's findings were upheld, confirming fraud and invalidating the plaintiffs' claim to ownership of the suit property. -----Cited Cases: Rao Abdul Rehman (Deceased) through legal heirs v. Muhammad Afzal (Deceased) through legal heirs (2023 SCMR 815) Amjad Ikram v. Mst. Asiya Kausar (2015 SCMR 1) Madan Gopal v. Maran Bepari (PLD 1969 SC 617) Muhammad Nawaz v. Haji Muhammad Baran Khan (2013 SCMR 1300) -----Disposition: Suit dismissed—Findings of fraud upheld—Doctrine of Res Judicata applied—Costs reduced in line with statutory limits. (b) Civil Procedure Code (V of 1908) — Ss. 35 & 35-A — Costs — Jurisdiction of Appellate Court — Compensatory Costs in Appeal. The appellate Court imposed compensatory costs of Rs.500,000 on the plaintiffs for pursuing a fraudulent and vexatious claim—Held, under Section 35-A of the CPC, compensatory costs cannot exceed Rs.25,000, and appellate courts are not empowered to award such costs—The power to award compensatory costs under Section 35-A lies solely with the trial court—The costs imposed by the appellate Court were set aside while maintaining the findings of fraud. -----Cited Cases: SITE v. Mst. Qamar Hilal (2002 MLD 1569) 2001 SCMR 1680 Disposition: Compensatory costs of Rs.500,000 set aside—Appellate Court's authority under S.35-A CPC clarified. (c) Penal Code (XLV of 1860) — S.193 — Criminal Proceedings for Perjury — Initiation by Appellate Court — Judicial Discretion. Appellate Court initiated criminal proceedings under Section 193, PPC against the plaintiffs for presenting false evidence and committing perjury during judicial proceedings—Held, such proceedings are justified when expedient in the public interest and not as a tool for private vengeance—The appellate Court’s direction to initiate criminal proceedings was upheld, as the plaintiffs’ actions demonstrated deliberate fraud, falsehood, and misrepresentation. -----Cited Cases: Rao Abdul Rehman v. Muhammad Afzal (2023 SCMR 815) -----Disposition: Initiation of criminal proceedings upheld—Judicial discretion correctly exercised by the appellate Court.

Summary: The crux of the matter revolved around the respondent's dismissal from service, which led to a grievance petition filed with the NIRC. The petitioner initially participated in the proceedings but subsequently failed to appear, leading to an ex-parte judgment against them. Efforts to set aside this judgment, including an appeal to the Full Bench of the NIRC and a constitutional petition to the Lahore High Court, were unsuccessful. One key precedent cited was "Pir Bakhsh v. the Chairman, Allotment Committee" (PLD 1987 SC 145), which the Court used to discuss the principle of res judicata, emphasizing that a judgment becomes final if not appealed within the prescribed time frame.The Court also referred to "Mukhtiar Hussain versus Mst. Shafia Bibi" (2023 SCMR 159) to illustrate the consequences of a party's deliberate abstention from proceedings and the implications for seeking relief from an ex-parte decree.In discussing the doctrine of election and the consequences of choosing one legal remedy over others, the Court cited "Trading Corporation of Pakistan versus Devan Sugar Mills Limited and others" (PLD 2018 Supreme Court 828), highlighting that once a legal route is chosen, the petitioner is barred from pursuing alternative remedies for the same cause.Furthermore, the judgment addressed the application of the Limitation Act, referring to "Allah Dino and another versus Muhammad Shah and others" (2001 SCMR 286) to clarify the conditions under which the provisions of the Limitation Act apply, particularly in relation to statutory periods of limitation.The Supreme Court also underscored the public interest in finality and certainty in legal matters, citing "Ghulam Rasool and others versus Ahmad Yar and others" (2006 SCMR 1458), "Collector Sales Tax (East), Karachi versus Customs, Excise and Sales Tax Appellate Tribunal, Karachi and another" (2008 SCMR 435), and "Messrs SKB-KNK Joint Venture Contractors through Regional Director versus Water and Power Development Authority and others" (2022 SCMR 1615) to emphasize the importance of adhering to limitation periods and the principle that rights accrue to the other party upon the expiry of such periods.In conclusion, the Supreme Court dismissed the petition, finding no grounds to grant leave to appeal. The judgment reinforced the principles of due diligence, the finality of legal decisions, and the careful selection of legal remedies, as guided by the cited precedents.