MIRZA KHAN and another vs MUHAMMAD ILYAS

1. ' 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.

2. Leave to appeal was granted to examine: whether, the High Court had not exceeded its jurisdiction in second appeal in reversing the concurrent findings of fact arrived at by the two Courts below.

3. Secondly, whether after the decision in the case of Government of N.-W.F.P. v. Malik Said Kamal Shah PLD 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.

4. ' 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 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 unfortunately 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 dimissed. There shall be no order as to costs.