ABDUL WALI KHAN through Legal Heirs and others vs MUHAMMAD SALEH

' MUNIR A. SHEIKH, J.---Through this petition, leave to appeal has been sought against the judgment, dated 2nd April, 1997 of the High Court of Sindh, Circuit Bench at Larkana passed in Revision Petition No,149 of 1994 by which the said revision petition filed by the petitioners against the judgment, dated 30th May, 1994 of the Additional District Judge, Larkana was dismissed.

2. The facts in brief are that the respondent filed a suit against Abdul Wali Khan, deceased, predecessor-in-interest of the petitioners for specific performance of agreement of sale of a plot measuring 1800 sq.Ft. Abdul Wali Khan deceased denied the execution of the said agreement of sale. He died during the pendency of the suit and the present petitioners were substituted as his legal representatives who contested the suit.

3. The trial Court dismissed the suit through judgment, dated 25th February, 1993 against which the appeal filed by the respondent before the learned Additional District Judge was accepted through judgment dated 30th May, 1994 and the suit decreed.

4. The petitioners filed Civil Revision No,149 of 1994 before the Sindh High Court, Circuit Bench at Larkana which has been dismissed through the impugned judgment, dated 2nd April, 1997 against which leave to appeal is sought.

5. Learned counsel for the petitioners in support of this petition raised the following contentions:--

(a) That apart from Haji Allah Bakhsh, scribe, there were three marginal witnesses of the disputed agreement of sale, namely, Muhammad Ishaq, Nazir Ahmad and Muhammad Uris but only Muhammad Uris was examined as P.W.2 and no cogent explanation was given for not examining the said other witnesses;

(b) That Haji Allah Bakhsh deceased before his death had sworn an affidavit which was produced in evidence as Exh.162 that he was kidnapped in 1986 and was made to scribe the disputed agreement of sale which was shown to have been executed in 1983 which has been excluded from consideration on the grounds not permissible under the law;

(c) The discrepancies in the evidence of Muhammad Uris P.W.2 and respondent who appeared as P.W.1 have also not been given due consideration by the learned Additional District Judge and the learned Judge in Chamber.

6. Learned counsel for the petitioners when questioned, however, admitted that Haji Allah Bakhsh, scribe died before he could be examined as witness in the case, therefore, in our view, the affidavit earlier sworn by him and produced in evidence was rightly not considered as evidence in the case as the respondent/plaintiff did not have the opportunity to cross-examine him. Without entering upon the discussion about the merits of the said affidavit, we may also observe that the fact of obtaining the affidavit of Haji Allah Bakhsh during his lifetime was itself a circumstance which made the same doubtful for in the normal circumstances, the evidence of a witness in civil cases who was to be examined by a party is not normally obtained in the form of affidavit. As to why the petitioners chose to get affidavit from Haji Allah Bakhsh and not the other marginal witnesses makes the affidavit itself doubtful. Learned counsel for the petitioners when asked as to who attested the affidavit submitted that it was attested by a Magistrate. He, however, admitted that the said Magistrate was not examined as a witness by the petitioners, therefore, the said affidavit and its contents were rightly excluded from consideration as evidence in the case which is perfectly in accordance with law.

7. As regards non-production of the other two marginal witnesses, the argument is not based on any provision of law. Any of the marginal witnesses, according to law at the relevant time, could prove the execution of a document provided his evidence was inspiring confidence. The learned Additional District Judge after considering the evidence of Muhammad Uris, P.W.2 and the respondent who examined himself as P.W.1 was satisfied that the same was sufficient to prove the execution of document to which legally no exception could be taken and the petitioners could not insist that unless the other two marginal witnesses had also been produced and examined as witnesses, the evidence of one Muhammad Uris, the third marginal witness could not have been taken into consideration as evidence.

8. Learned counsel for the petitioners then maintained that discrepancies appearing from the evidence of P.W.1 were not taken into consideration. Learned counsel frankly admitted when questioned that the alleged discrepancies were noticed by the learned Additional District Judge expressly and according to the findings, they were held to be mere minor discrepeanices which did not affect the quality and merits of the evidence as proof of the agreement of sale. If that be so, we are afraid that inferences drawn by the learned Additional District Judge from the evidence of witnesses after duly considering the alleged discrepancies could be interfered with under section 115, C.P.C. By the High Court, therefore, it was rightly held by the learned Judge in Chamber that even if on reappraisal of evidence, there was possibility of taking another view by the High Court, a finding of fact was not liable to be set aside on that score.

9. Learned counsel for the petitioners before us also while arguing when asked to point out any misreading or non-reading of material pieces of evidence affecting adversely the finding of fact recorded by the learned Additional District Judge in appeal failed to do so.

10. Learned counsel lastly argued that since findings of the first Appellate Court were at variance with the findings of the Trial Court, therefore, the High Court should have undertaken reappraisal of evidence and recorded its own findings which, in such circumstances, could be substituted by the High Court even on merits. This argument too has no force. According to established law, High Court cannot interfere in the findings of fact which may not be even concurrent even if on the appraisal of evidence it was possible to reach to a different conclusion unless it was shown that such a finding by the lower Court suffered from misreading or non-reading of evidence which had affected the findings on merits.

11. For the foregoing reasons, the petition is without any merits which is accordingly dismissed and .