ZAR WALI SHAH vs YOUSAF ALI SHAH and 9 others

1. ' MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court has arisen out of an unfortunate dispute between the appellant and his uncle, the predecessor in interest of the respondents' side - late Saeed Shah.

2. ' The appellant Zar Wali Shah filed suit for declaration that an evacuee property transferred to his uncle Saeed Shah in fact belonged to the appellant to the extent of 1/3rd share; as he had contributed in the payment of price of said property to the extent of Rs,28,000 at the time of its purchase by Saeed Shah in an open auction. Reliance was also placed on an agreement alleged to have been executed by Saeed Shah, dated 21-4-1974 acknowledging 1/3rd share of the appellant in the suit property. The respondents/defendants' side had also instituted a suit against the appellant claiming declaration of ownership as heirs of .Saeed Shah and challenging the correctness of Iqrarnama dated 21-4-1974. They also prayed for the recovery of mesne profit from the appellant. The appellant's suit was dismissed while respondents' was decreed. Subsequently, the appellant having failed, throughout, his .Petition for leave to appeal was converted into appeal, alter examining the documentary evidence relied upon from the appellant's side--particularly the original Iqrarnama, which, was in appellant's possession and he showed it at the time of hearing.

3. ' While converting the petition into appeal on 12-5-1992 the parties were directed to produce or point out from the record such documents which contained admitted signatures of Saeed Shah in Urdu. It was so directed because it was agreed that if the Iqrarnama is genuine the respondents would have no case. The original record was also ordered to be produced at the time of the hearing of the appeal. In addition the learned counsel for both sides were directed to help the parties to enter into meaningful dialogue for settlement out of Court.

4. ' At the time of the hearing of the appeal both the sides were additionally afforded opportunity with the assistance of their learned counsel to further discuss out of Court the question of amicable settlement. When the appeal was taken up earlier, the counsel had submitted a failure report on this question. However, even this effort at least for the time being with, of course, the permission of the Court, stands deferred.

5. Both the learned counsel mainly concentrated their arguments on the genuineness of the Iqrarnama. Learned counsel for the respondents reiterated all the points which prevailed with the High Court and are mentioned in the impugned judgment. Learned counsel for the appellant on the other hand contended, that enough material particularly documentary being available to the learned lower Courts for comparison with the disputed signatures on the disputed documents, no serious effort was made to reach the truth.

6. ' Be that as it may, both the parties respectively submitted for examination the admitted Urdu signatures of Saeed Shah. We compared the signatures offered from both sides. Unfortunately this process has also not helped us to reach any final conclusion. The visual comparison by us which is permissible under the law of evidence, showed that the signatures relied upon by the appellant do tally with the disputed ones while the signatures relied upon by the respondents' side, do not. Under these circumstances both the parties agreed that further probe could be made for resolving this controversy which; without any reservation is a major element in the decision of the present appeal. Both the parties offered to adduce further evidence if permitted to do so.

7. It is not necessary to admit any additional evidence in this Court. It appears that the trial Court could have collected more evidence but failed to do so. Even if one or the other party had failed to produce all the material documents and/or failed to request for proper examination of the disputed document/signatures, the Court had ample power to do the needful so as to advance justice rather than injustice. The concept of bar against filling the gaps is no more available in the present Pakistan jurisprudence and the law; including, the precedent law on Islamic principles; which are being made applicable progressively to the proceedings before the Courts and other forums which are required to record/admit evidence. See Mian Aziz A. Sheikh v. The Commissioner of Income-tax PLD 1989 SC 613.

8. ' In the light of the foregoing discussion there is no alternative but to allow this appeal and remand the case to the trial Court for fresh decision with the direction that all the legitimate facilities will be granted to both the parties not only to produce evidence but also to make necessary amendments in the pleadings and proceedings without; of course, permitting them to change the main positions in so far as the cause of action is concerned. There shall be no order as to costs.