NOOR MUHAMMAD vs NAZAR MUHAMMAD
This petition for leave to appeal arises out of a civil dispute between real brothers regarding the ownership of a shop in District Sargodha, which was purchased by the respondent through a registered sale-deed dated 22-1-1979. The petitioner filed a suit for declaration claiming the sale-deed was fictitious and void, which was dismissed by the trial court, and subsequent appeals before the Additional District Judge and the Lahore High Court were also dismissed. The core legal question involved the proper legal standard for proving the execution of a sale-deed executed prior to the promulgation of the Qanun-e-Shahadat Order, 1984. The Supreme Court of Pakistan held that since the sale-deed was executed before the promulgation of the said Order, its execution is governed by section 68 of the erstwhile Evidence Act rather than Article 79 of the Qanun-e-Shahadat Order, 1984, and stood duly proved by the testimony of a marginal witness. The petition was accordingly dismissed and leave to appeal refused.
- Whether the execution of a sale-deed executed prior to the promulgation of the Qanun-e-Shahadat Order, 1984 is to be proved under Article 79 of the said Order or under section 68 of the erstwhile Evidence Act?
- Can a concurrent finding of fact by the lower courts be interfered with on the ground of misreading of evidence without highlighting specific instances thereof?
- Article 79, Qanun-e-Shahadat Order 1984
- Section 68, Evidence Act 1872
' QAZI MUHAMMAD FAROOQ, J.---The dispute in this petition pertains to ownership of a shop situated in Shahpur City, District Sargodha. The parties are real brothers and it appears from the record that the suit shop was purchased by the respondent Nazar Muhammad by virtue of a registered sale-deed dated 22-1-1979. A suit was filed by the petitioner for a declaration to the effect that the suit shop was owned by him and the sale-deed dated 22-1-1979 in favour of the respondent being fictitious, fabricated and fraudulent was void and ineffective on his rights. After a hot contest the suit was dismissed by the learned trial Court on 3-1-1998 on the ground that the petitioner had failed to substantiate his claim. The petitioner filed an appeal which was dismissed on 22-12-1998 by the learned Additional District Judge, Sargodha and the revision petition filed by him was also dismissed by a learned Single Judge of the Lahore High Court vide judgment dated 25-2-1999. Hence this petition for leave to appeal.
2. It was contended by the learned counsel for the petitioner that the High Court had overlooked this glaring .Fact that the judgments passed by the two Courts below were result of misreading of evidence. He further contended that the execution of the sale-deed had not been proved in accordance with the provisions of Article 79 of the Qanun-e-Shahadat Order, 1984 (hereinafter referred to as the Order).
3. The contentions have not impressed us. The learned counsel for the petitioner has contended that the judgments of the two Courts below were outcome of misreading of evidence but surprisingly has not highlighted any instance in respect thereof. Be that as it may, we have gone through the judgments rendered by the learned trial Court as well the learned Appellate Court and have not found any misreading or non-reading of evidence. The sale-deed in question was executed prior to the promulgation of the Order, therefore, its execution is to be proved in the light of the provisions of section 68 of the erstwhile Evidence Act and not under Article 79 of the Order.
The execution of the sale-deed stands proved in the light of the statement of one of the marginal witnesses Kh. Abdul Waheed (D.W.2). The testimony of the said witness is not vulnerable to any criticism and its effect cannot be offset by the ipse dixit of the petitioner.
' The petition is, therefore, dismissed and leave refused.
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