MUHAMMAD HANIF vs GHULAM RASUL AND OTHERS
This matter involves two petitions for leave to appeal against a judgment of the Lahore High Court, which dismissed the petitioner's suits for pre-emption. The core legal question was whether the petitioner, who claimed a superior right of pre-emption based on being a collateral of the vendors and an owner in the Patti/estate, had discharged the burden of proof regarding these claims. The petitioner relied on oral evidence, having intentionally withheld available documentary evidence, specifically the pedigree-table and Jamabandi. The Supreme Court upheld the High Court's decision, holding that the petitioner failed to discharge the burden of proof. The Court affirmed that when the best available documentary evidence is intentionally withheld by a party, adverse inferences are justified. Furthermore, the Court reiterated that oral evidence regarding relationship and ownership is inadmissible when documentary evidence is available and withheld, citing the provisions of the Evidence Act. Consequently, the Court found no merit in the petitions and dismissed them, confirming that the High Court committed no illegality in its assessment of the evidence and the resulting presumption against the petitioner.
- Does the intentional withholding of available documentary evidence by a party justify an adverse inference regarding the facts sought to be proved?
- Is oral evidence admissible to prove relationship and ownership in a pre-emption suit when the relevant documentary evidence was available but withheld?
- Does the burden of proof regarding the superior right of pre-emption lie on the claimant?
- Section 32(5), Evidence Act 1872
- Section 50, Evidence Act 1872
ORDER
1. ' MUHAMMAD AFZAL ZULLAH, J.-These two petitions (C. Ps. 190 and 191 of 1979) call in question the judgment dated 3rd July, 1979 of the Lahore High Court whereby the respondents appeals arising out of petitioners' suits for pre-emption, were allowed and the suits were dismissed.
2. ' The petitioner had based his claim to the superior right of pre-emption on : (i) being a collateral of the vendors and (ii) being an owner in the Pattie state. The learned trial Court as also the first appellate Court, relying on the oral evidence adduced by the petitioner held that he had superior right of pre-emption. A learned Single Judge in the High Court observed that the pedigree-table which could be obtained, was intentionally withheld by the petitioner--the same was placed on the records of the appeals in the High Court by the respondents. It was also noticed that the petitioner did not produce the Jamabandi to.Show that he was the owner in the Patti/estate. The oral evidence in view of the above position, as analysed by the learned Judge, was not considered enough to dispell the inference deducible from petitioner's own conduct, in intentionally withholding the best available evidence. It was also conceded from the appellant side that in view of the ruling of this Court in Shah Nawaz and another v. Nawab Khan (1) the oral evidence led by the petitioner on question of his relationship with the vendors was inadmissible on account of provisions contained in S. 32 (5) read with S. 50, Evidence Act.
3. Learned counsel has taken us through the evidence which he though could be a substitute for the documentary evidence. We do not agree with A him. The pedigree-table and the Jamabandi it is now admitted, were available at the relevant time. The burden of proof of the issue qua
(1) PLD 1976 SC 767 ' relationship and ownership in Patti/estate, was on the petitioner. The learned High Court has not committed any illegality, in the circumstances of this case in concluding that the documentary evidence was intentionally withheld by the petitioner. We find that the presumption raised in this behalf was also unexceptionable. The reading of the oral evidence has not at all improved the petitioner's case. The assertions made by the petitioner and his witnesses, on oath were met with counter assertions made from the respondents' side also on oath. The argument of the learned counsel that the petitioner's witnesses were not cross-examined from the respondents on the vital questions, applies with reference to conduct on the petitioner's side. There was no cross- examination by their counsel either, on the respondents' deposition on these very questions.
4. ' We find no force in these petitions. They are accordingly dismissed.
Cited by 2 cases
- BASHIR AHMAD Versus MST. NASEEM FATIMA 2001 CLC 1447
- HABIBULLAH KHAN and others vs SAADAT KHAN and others 1990 MLD 355