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Petitioner: Mst. HALEEMA BIBI VS Respondent: ABDULLAH SAEED ANWAR
Court Name: Lahore High Court Judge(s): Sh. Hakim Ali Title: Mst. HALEEMA BIBI vs ABDULLAH SAEED ANWAR Case No.: Civil Revision No.276-D of 1999 Date of Judgment:2005-03-15 Reported As: 2005 YLR 2310 Result: Revision accepted
JUDGMENT
JUDGMENT ' Judgment of reversal, passed by learned Additional. District Judge, Burewala on 18-2-1999, has been challenged through this civil revision, by Mst. Haleema Bibi, plaintiff-petitioner, who had got a decree in her favour, from the learned Civil Judge, Burewala on 13-11-1997. 2. The facts, as found from the record and narrated by the learned counsel are that Dil Muhammad was married to one Mst. Safia Bibi, from whom respondents Nos.l to 3 were born. Aforesaid Dil Muhammad contracted a second-, marriage with Mst. Haleema, who was a lady having a landed property. A gift-deed was got executed allegedly from Mst. Haleema Bibi by Dil Muhammad in his favour through Deed No.657, registered on 27-4-1986, as with regard the lands measuring 82, Kanals 14 Marlas, situated in Chak No.469/EB, Tehsil Burewala. Mst. Haleema Bibi challenged the validity of this registered gift-deed dated 27-4-1986, which was entered into the Revenue Record through Mutation No.171 dated 24-6-1986. She narrated in her suit that she had not appeared before the Sub-Registrar and had never got registered or gifted away the property to Dil Muhammad. She also asserted that she was an illiterate villager, Pardanasheen lady and the deed is the result of fabrication and forgery. Giving the reasons of having not gifted away, it was stated by her in her plaint that she could not gift out that property to Dil Muhammad, as she was issueless and it could not be presumed from her that she would alienate her last source of income to Dil Muhammad, which was consequently to devolve upon the issues of his second wife (step-sons and step-daughters). 3. The suit was contested. The issues were framed and the parties had adduced their evidence. After appreciation and evaluation of the evidence, learned Civil Judge decreed the suit in favour of Mst. Haleema Bibi on 13-11-1997. Aggrieved from that judgment and decree, heirs of Dil Muhammad,
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who were defendants in the suit, filed appeal before the learned Additional District Judge, Burewala, which was accepted and the suit was dismissed on 18-2-'1999. Hence, this revision petition. 4. It has been submitted by the learned counsel for the petitioner that the impugned judgment and decree of the learned Additional District Judge is liable to be reversed because learned Judge has failed to appreciate and apply the correct law, which was provided in case of an illiterate villager woman. The evidence must be of cogent and satisfactory nature in case of transaction being executed with that lady. There must be evidence showing conscious application of mind for the execution and for transacting or getting a transaction of benefit from the aforesaid lady. As the burden to prove the correctness/validity of the gift-deed was heavily placed upon the shoulders of respondents/defendants, they had to bring credible evidence in which they had failed. D.W.6, Ch. Ghulam Mustafa Ghumman, Advocate, who had identified the alleged executant at the time of registration of the disputed gift, had stated that the woman was clad in a Burqa and the contents were never narrated to that woman while Malik Khuda Bakhsh, Sub-Registrar, D.W.7 had admitted in his statement that he had not known the lady personally. D.W.8, Abdul Haq, the marginal witness of Exh.D.1 (gift-deed) had not been able to state as to why the gift was made. D.W.1, Syed Hatam Hussain Gillani, scribe was also not believable as he had not known Dil Muhammad personally, while Mst. Haleema Bibi was allegedly known to him personally which statement was incredible. (Wife was known and not of her husband. Strange was the sentence). The statement of D.W.4 has also been challenged by the learned counsel by stating that the statement was unbelievable because a lady cannot, who go and fetch the witnesses to witness the making of her gift. So, the learned counsel has prayed that the judgment and decree, passed by learned Additional District Judge be reversed. 5. On the other hand, learned counsel for the respondents has replied that D.W.1, Syed Hatam Hussain Gillani had categorically stated that Mst. Haleema Bibi was known to her personally while D.W.2, Abdullah Saeed Anwar, defendant No.2 had also supported the gift transaction and had proved the transaction of gift. There was no specific denial of thumb-impression having not been affixed upon the gift-deed in dispute. The judgment of the learned Additional District Judge was passed upon sound reasonings. He has also stated that marriage of Mst. Haleema Bibi with Dil Muhammad was the result of love affair, so Mst. Haleema Bibi had alienated the lands in dispute to him. The plaintiff had not produced any other witness except her own statement, which was got recorded by her as P.W.1. The plaintiff was a wise lady and had admitted that she could compare between good and bad in affairs. The possession having been changed in the Revenue Record, the judgment of the learned Additional District Judge requires to be upheld. 6. After considering the arguments of both the learned counsel and from the perusal of the record, I have found that it is an admitted fact that Mst. Haleema Bibi was a lady, who was villager, Pardaob serving and illiterate also. In such cases, the law is well-settled, that not only the transaction has to be proved with cogent evidence but that it was entered by her with conscious application of mind and through independent advice. Other factors, such as reaso.n to make gift are also to be kept in view. The disputed land was the only asset of the aforesaid lady. It was not expected from her to gift away that land to a husband, having another wife and the children from that other wife. I cannot subscribe to the view that due to love affair, the lady had contracted marriage with Dil Muhammad and had gifted away the property to him. There may be a love affair, which has also not been proved on the record, yet it could not be presumed that the lady had gifted away all her lands to that alleged donee. Such a lady could not lose all her assets, after the culmination of that alleged love affair into marriage. Independent advice was imparted to Mst. Haleema Bibi was to be proved on the record by the alleged beneficiary. Jannat Bibi v. Sikandar Ali and others PLD 1990 SC
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642; Ch. Nasrullah Khan v. Muhammad Raman and others 1991 CLC 104; Muhammad Hashim and others v. Arshad Javed (Irshad Javaid) and another 1991 MLD 986; Mst. Saleema Bibi v. Sardar Khan and 4 others 1991 MLD 2359; Lal Shahadat Khan and another v. Mst. Gul Marjana 1989 CLC 803; Mst. Hussain Bibi v. Zafarullah Khan and another PLD 1967 Lahore 744 and Amirzada Khan and another v. Itbar Khan and others 2001 SCMR 609. The above noted decisions and the evidence, which I have noted in the arguments of the learned counsel for the petitioner, fully prove that the gift document was not proved up to the hilt. The arguments of the learned counsel for the respondents that the possession was changed and was with the respondents, so, the gift was proved, cannot be accepted in the instant case, because the petitioner wilt, was a villager, parda-observing lady was not managing the property herself. It was naturally her husband, the male, who was holding its possession on her behalf, therefore, the change of entries even if made on the basis of disputed registered gift-deed in the Revenue Record, were the consequences of that deed. There was no independent proof of delivery of possession. The possession of husband who was living with that wife, would be presumed to be that of his wife. As regards solitary statement of plaintiff, the argument is fallacious, because the plaintiff had only to controvert, negate and refute the execution of the alleged gift-deed, while it Was for the respondents to prove the execution and attestation of the deed of gift and transaction. The plaintiff was not required by any law to bring more witnesses necessarily and mandatorily, as the burden of proof after the statement of Mst. Haleema Bibi had shifted towards the defendants/respondents. The judgment of the learned Additional District Judee is not maintainable in the eye of law, which has proceeded to reverse the judgment of the learned Civil Judge on presumptions and conjectures not warranted by any law and due appreciation of facts/evidence of the case. Therefore, by accepting this civil revision, judgment of the learned Civil Judge having been found based on sound and cogent reasons is restored and upheld while the impugned judgment of the learned Additional District Judge is set aside, with no order as to cost. Revision accepted. 2005 YLR 2314 [Lahore] Before ljaz Ahmad Chaudhry and Nasim Sabir Ch., JJ MUHAMMAD ASHFAQ alias GOSHI---Petitioner versus THE STATE ---Respondent Criminal Miscellaneous No.2 and Criminal Appeal No.903 of 2004, decided on 29th June, 2004. Criminal Procedure Code (V of 1898)--- ----S.426---Penal Code (XLV of 1860), Ss.3Q2(b) & 452---Suspension of sentence---Role ascribed to applicant was that he raised only Lalkara and had not caused any injury to deceased though he was armed with a rifle---Sentence of applicant was suspended in peculiar circumstances of the case, and he was released on bail. [p. 2315] A Altaf _Ibrahim Qureshi for Petitioner. Masood Sabir for the State. Date of hearing: 29th June, 2004. ORDER ' Through this application under section 426, Cr.P.C., Muhammad Ashfaq alias Goshi, petitioner seeks suspension of sentence as vide judgment dated 9-12-2003, passed by learned Additional Sessions Judge, Burewala, he has been found guilty under section 302(b), P.P.C. And sentenced to imprisonment for life with further direction to pay a sum of Rs.1,00,000 to legal heirs of the deceased as compensation or in default thereof to further undergo rigorous imprisonment for four months. He was also found guilty under section 452, P.P.C. And sentenced to rigorous imprisonment
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for seven years with a fine of Rs.25,000 or in default thereof to further undergo rigorous imprisonment for two months. Both the sentences were ordered to run concurrently. 2. Learned counsel appearing on behalf of the petitioner contends that in the F.I.R. It was alleged by the complainant that though the petitioner was armed with a rifle and entered into his house, but did not cause any injury to the deceased. Also contends that during investigation police found all the five accused innocent and then a private complaint was filed by the complainant, in which same role was ascribed to the petitioner. Prays that as he has not caused any injury to the deceased, his sentence may be suspended. 3. Learned counsel for the State opposes this application on the ground that conviction was passed six months ago and the petitioner has been found guilty under sections 302/452, P.P.C. 4: We have heard learned counsel for the parties. As the role ascribed to the petitioner is that he raised only Lalkara and had not caused any injury to the deceased, though he was armed with a rifle, in the peculiar circumstances of the case, we are inclined to suspend his sentence.. 5. This application is accordingly accepted and petitioner is directed to be released on bail subject to his furnishing bail bonds in the sum of Rs.1.00,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of trial Court. Application accepted. 2005 YLR 2315 [Peshawar] Before ljaz-ul-Hassan-khan, J THE STATE through Advocate-General, N. -W . F. P. ---Appellant versus FAZALUR REHMAN---Respondent Acquittal Appeal No.89 of 1999, decided on 27th May, 2005. Criminal Procedure Code (V of 1898)--- ----5.417---Penal Code (XLV of 1860), S.324---Appeal against acquittal---To convict a person on capital charge, evidence should be of high quality and good standard which was not available in the present case---Prosecution primarily was supposed to establish guilt against accused beyond shadow of reasonable doubt by bringing trustworthy, convincing and coherent evidence for the purpose of awarding conviction---Judgment returned in case by Trial- Court was a fair judgment based on proper, just and legal appreciation Hof evidence on record--- Appellant had failed to show that impugned judgment of acquittal of accused was fanciful or based on no evidence-Evidence A of prosecution had been fairly and properly appreciated by Trial Court to secure the ends of justice---State/prosecution was nor able to point out any important piece of evidence which could form the basli.i of conviction-Accused though stood directly nominated in promptly lodged report for the commission of crime, but prosecution had failed to produce evidence which could connect accused with commission of crime--- Standards of assessing evidence in appeal against acquittal were quite different from thOse laid down for appeal against conviction-Appraisal of evidence, in appeal against conviction, was done strictly and in appeal against acquittal same rigid methOd of appraisement was not applied as there was already finding of acquittal given by Trial Court after proper analysis of evidence on record---Interference in, acquittal appeal, was made Only when it appeared that there had been gross misreading of evidence which amounted to miscarriage of justice---Ordinarily scope of appeal against acquittal of accused was considerably narrow and limited-Courts while dealing with appeal against acquittal, interfered only in such cases where judgment of acquittal was based on misreading, non-appraisal of evidence or was speculative, artificial, arbitrary and foolish on its face---Solitary statement of complainant, in absence of corroborative evidence, had rightly been discarded and excluded out of consideration in case by Trial Court-Judgment of acquittal was balanced and -well-reasoned and enough evidence for conviction of accused was not
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available in the case---After acquittal accused enjoyed double presumption of being innocent as the first presumption was awarded to him by law while second presumption was created by impugned judgment of acquittal---To do away with both said presumptions, prosecution was required fool-proof case, which was not the position in the present case---Impugned judgment of acquittal passed by Trial Court was upheld and appeal against acquittal was dismissed. IPp.2317, 2318 A, B, C & D Muhammad Usman and 2 others v. The State 1992 SCMR 498; The State v. Muhammad Raja and 3 others PLD 2004 Pesh. 1; Muhammad Ali v. Muhammad Yaqoob and 3 others 1998 SCMR 1814; Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; State through Advocate-General Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1 and Hameed-ur-Rehman v. Said Rehman and 5 others 2005 PCr.LJ 53 ref. Muhammad Adil Khan for the State. Zakir Hayat for Respondent. Date of hearing: 20th May, 2005. JUDGMENT ' Through this Acquittal Appeal No.89 of 1998 the State has called in question the acquittal judgment dated 17-11-1997 passed by learned Additional Sessions Judge, Kohat in Sessions case No.76 of 1995 under section 324, P.P.C. Arising out of F.I.R. No. 244 dated 14-6-1994 of Police Station Cantt., Kohat. 2. Tne prosecution story in brief is, that on the night of occurrence complainant Imran Shah, employed at PAF Petrol Pump, was on the way to his house on bicycle after finishing his duty. When he reached near Janana Mills at 9-15 p.m., accused-respondent Fazlur Rehman already present there, started firing on the complainant with pistol, as a result whereof the complainant was hit on the thigh. The complainant boarded a flying coach and managed to reach the hospital. 3. A.S.-I., Qaiser Khan (P.W.8) on receipt of information regarding the occurrence reached the hospital, recorded the report Exh.P.A./1 at the instance of the complainant and prepared injury sheet Exh.P.M./1 of the injured and then proceeded to the spot. He prepared site-plan Exh.P.B. And recovered two empties of .30 bore P.7 from the spot vide recovery memo. Exh.P.C./2 in the presence of marginal witnesses. On the following day he arrested the accused-respondent from his house and recovered from his possession a .30 bore pistol with a kash, having 19 rounds and one spare magazine, and a licence copy vide memo. Exh.P.C./1. The crime empties and the pistol in question were sent to Fire-arms Expert Peshawar. After completion of investigation complete challan was submitted in Court. 4. A formal charge was framed against the accused-respondent to which he pleaded not guilty and claimed trial. 5. The prosecution with the view to establish the guilt of the accused produced 8 witnesses in all complainant Imran Shah fully supported the prosecution version and charged the accused- respondent for the offence in question. Dr. Shahid Sardar (P.W.5) Liaqat Memorial Hospital, Kohat, on 14-6-1993 at 10-00 p.m. Examined complainant and found the following:-- (1) Fire-arm entry wound diameter right thigh upper aspect, lateral side 6" below groin. (2) Fire-arm exit wound 1/2" diameter right thigh upper aspect, medial side at the level of entry wound. (3) Fire-arm grazing wound upper surface of glans penis." 6. Considering the material on record, . Learntd trial Judge came to the conclusion that prosecution has not been able to prove its case against the accused beyond any shadow of doubt and acquitted him by extending benefit of doubt. 7. Towards the end of the trial, statement of accused was recorded under section 342, Cr.P.C.. By putting all prosecution evidence brought on record against him who denied the charge and claimed his innocence and in answer to the question as to why the prosecution witnesses have deposed against him, he replied as under:--
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"None of the P.Ws. Have brought any solid charge against me because no witness has appeared who could connect me with the commission of the crime and the solitary eyewitness has himself admitted that he had already grievance against me because of strained relations of her sister with me and therefore, his testimony becomes very doubtful. The police officials though are of very weak nature but they are always interested in the success of their case so I submit that there is no witness against me who can be relied upon." 8. Mr. Muhammad Adil Advocate, appearing on behalf of the State, vehemently contended that overwhelming credible and trustworthy evidence has been adduced by the prosecution in the shape of the deposition of the complainant, medical evidence and recovery of crime empties from the spot, which conclusively proves the guilt of the accused-respondent but the learned trial Judge erroneously disbelieved and discarded the testimony of the complainant by drawing inferences which are neither probable nor acceptable, which has resulted in complete failure of justice. 9. Mr. Zakir Hayat Advocate, for the accused-respondent, on the other hand, supported the impugned judgment whole heartedly and stressed that reasons advanced in support of acquittal are sound, cogent and based upon evidence on record and these are not at all flimsy and whimsical. 10. To convict a person on capital charge, evidence should be of high quality and good standard which is not available in this case. The prosecution primarily is supposed to establish guilt against the accused beyond shadow of reasonable doubt by bringing trustworthy, convincing and coherent evidence for the purpose of awarding conviction. The judgment returned by the trial Court is a fair judgment based on proper, just and legal appreciation of the evidence on record. Appellant has failed to show that the impugned judgment of acquittal is fanciful or based on no evidence. The evidence of the prosecution has been fairly and properly appreciated to secure the ends of justice. Learned counsel for the State has argued that judgment in question was delivered without fully appreciating the evidence of the prosecution. He added that it was a fit case for conviction of the accused. When inquired as to what portion of the material evidence was not appreciated correctly by the trial Court. Learned counsel was not able to point out any important piece of the evidence which could form the basis of conviction. No doubt, it is true that accused- respondent stands directly nominated in the promptly lodged report for the commission of crime but it is equally true that the prosecution has failed to produce evidence which could connect accused-respondent with the commission of crime. It needs no reiteration that standards of assessing evidence in appeal against acquittal are quite different from those laid down for appeal against conviction. There is a marked difference between appraisement of evidence in the appeal against conviction and in the appeal against acquittal. In the appeal against conviction, appraisal of evidence is done strictly and in the appeal against acquittal the same rigid method of appraisement is not to be applied as there is already finding of acquittal given by the trial Court after proper analysis of evidence on record. In the acquittal appeal, interference is made only when it appears that there has been gross misreading of the evidence which amounts to miscarriage of justice. The ordinary scope of appeal against acquittal of accused-respondent is considerably narrow and limited. It is well settled now that the superior Courts while dealing with the appeal against acquittal interfere only in such cases where the judgment of acquittal is based on misreading, non-appraisal of evidence or is speculative, artificial, arbitrary and foolish on its face. Muhammad Usman and 2 others v. The State 1992 SCMR 498; The State v. Muhammad Raja and 3 others PLD 2004 Peshawar 1; Muhammad Ali v. Muhammad Yaqoob and 3 others 1998 SCMR 1814; Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; State through Advocate-General Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1 and Hameed-ur-Rehman v. Said Rehman and 5 others 2005 PCr.LJ 53.
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11. The crime in question is stated to have taken place in the month of Ramzan at 9-15 p.m. On the main crossing near Janana Mills Kohat. The complainant claims to have succeeded to reach the hospital in a flying coach. Neither driver of the coach nor conductor nor anybody else has been produced in support of the assertion. The solitary statement of the complainant, in absence of corroborative evidence has rightly been discarded and excluded out of consideration by the learned trial Judge. 12. The judgment of acquittal is balanced and well-reasoned and I hold that enough evidence for conviction of accused-respondent was not available in the case. After the acquittal, accused- respondent enjoys double presumptions of being innocent as the first presumption is awarded to him by the law of the land while the second presumption is created by the impugned judgment of acquittal. To do away with both these presumptions prosecution is required a fool proof case, which is not in hand. For the foregoing reasons, I see no force in the State appeal and dismiss the same. The judgment of acquittal dated 17-11-1997 is upheld. ' The accused-respondent is discharged of the bail bond executed by him in pursuant to the order dated 22-6-1998 of this Court. Appeal dismissed. 2005 V L R 2319 [Lahore] Before Muhammad Akhtar Shabbir, J MUHAMMAD RAMZAN---Petitioner versus ROOPI alias Roop Shah and 2 others---Respondents Writ Petition No.4363. Of 2005, decided on 17th June, 2005. (a) Civil Procedure Code (V of 1908)- ----0. XVI, R. I & S.115---List of witnesses---Production of---Trial. Court under 0.XVI, R. I, C.P.C. Was empowered to allow a party to file a list of witnesses provided good cause for omission in that respect, was shown---Trial Court had not passed a speaking order while allowing application filed under 0.XVI, C. P. C. And had only mentioned that issue in the case had been framed, witnesses had been summoned and that case revolved around an agreement and that plaintiff had to prove that document---Defendant had strongly opposed said application, but same was accepted by Trial Court to meet the ends of justice subject to costs---No reasons for allowing application had been assigned by Trial Court--Revision against said order of Trial Court; was rightly accepted by the revisiortal Court. [p. 2320] A Mrs. Rafiqa Iqbal v. Muhammad All Hyder 1984 CLC 2886; Abdul Malik v. Muhammad Urfan and another 1989 CLC 2363 and S. Nisar Ali v. Feroze Din Rana and another 1969 SCMR 933 ref. (b) Constitution of Pakistan (1973)- 199---Constitutional jurisdiction--Scope---Petitioner had assailed revisional order of Court below in Constitutional petition-Order passed by a Court in exercise of its revisional…
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