2013 C L C 1171

[Peshawar]

Before Nisar Hussain Khan, J

FIDA MUHAMMAD and another----Petitioners

Versus

UMAR KHITAB----Respondent

Civil Revision No.831-P of 2011, decided on 1st March, 2013.

(a) Civil Procedure Code (V of 1908)---

----O. VII, R.3 & S.33---Object of O.VII, R.3, C.P.C.---Suit for declaration---Description of suit
property---Plaintiff, though in his plaint had mentioned Khata number and Khasra number of suit
property along with measurement, but it was nowhere disclosed that in which revenue estate the
suit property situated---Effect---Basic requirement of Order VII, R.3, C.P.C. was that when
subject-matter of the suit was an immovable property, the plaint would contain description of the
property, sufficient to identify the same---Purpose of R.3 of Order VII, C.P.C. was that, if a
decree was drawn, it should contain specific descriptions of the property, so that there could not
be a confusion or hardship at the time of its execution---Court would not pass a vague decree,
term of which, could not be ascertained with reasonable exactitude, which later on, could not be
executed---Decree should be of such a nature that the Executing Court should execute the same,
without going beyond it or making its own interpretation.

(b) Civil Procedure Code (V of 1908)---

----S. 115---Revisional jurisdiction of High Court---Scope---When questions involved in the case

required evidence, same need not be dilated upon by High Court, lest it could prejudice the case
of either side---Relevant facts, were to be considered at the time of final adjudication of the case.

(c) Qanun-e-Shahadat (10 of 1984)---

----Art. 59---Expert opinion as an evidence---Scope---Report of expert was a circumstantial

evidence, which in absence of direct evidence, was a weak type of evidence, unless same was
corroborated by other strong piece of evidence---If the expert was not examined in the court to
substantiate his report; or offered himself for cross-examination, his report would lose its
efficacy---Expert opinion, therefore, was a weak type of evidence, which could not be relied
upon for determination of the rights of the parties, in absence of any other corroborative piece of
evidence.

Allah Dino and 2 others' case 1974 SCMR 311 and Syed Muhammad Umar Shah's case
2004 SCMR 1859 rel.

(d) Qanun-e-Shahadat (10 of 1984)---

----Arts. 30 & 34---Admission---Binding force of admission and admissibility---Admission of a

party in ignorance of a legal right, was not binding on the maker---Admission being wrong on
point of fact, was also not admissible---In terms of Art.34 of Qanun-e-Shahadat, 1984, an
admission, even though, if considered to be a legal one, was a relevant fact, which clearly
connoted that the admission was not a conclusive proof against party, making it---Article 34 of
Qanun-e-Shahadat, 1984, further provided that admission, so made, could be proved and in such
a situation, the other side could prove the same to be wrong on the point of fact.

Ahmad Khan v. Rasul Shah and others PLD 1975 SC 311 and Qabil Shah and others v.
Shaday PLD 1992 Pesh. 144 rel.

(e) Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Revisional

jurisdiction---Scope---Both the parties had offered that thumb-impression on relevant papers be
referred to Laboratory and case be decided on the basis of the report of the Laboratory---Trial
Court, in circumstances, was required to proceed with the case by inviting the parties to lead
evidence on issues framed, particularly, when defendants had raised specific plea of
improvement in the suit property---Both courts, below, in circumstances, had erred in law by
decreeing the suit of the plaintiff, without recording evidence, merely on the basis of Forensic
Science Laboratory's report on thumb-impression was not a safe way for dispensation of justice--
-Judgments and decrees of both the courts below, being the result of patent violation of the law,
as well as non-adherence to the law applicable to the points involved in the matter, were illegal,
which were not sustainable---High Court normally, though did not interfere in the concurrent
findings of facts recorded by two courts below, but when there was gross illegality and patent
violation of law causing grave miscarriage of justice; High Court was under legal obligation to
rectify the error by interference in such illegal findings---Impugned judgments and decrees of the
two courts below were set aside, and case was remanded to the Trial Court for decision afresh,
after recording pro and contra evidence.

Mushtari Khan v. Jehangir Khan 2006 SCMR 1238 and Ghulam Muhammad and 3 others
v. Ghulam Ali 2004 SCMR 1001 rel.

Zulfiqar Ali Chamkani for Petitioners.

 Sadiq Hussain for Respondents.

Date of hearing: 1st March, 2013.

JUDGMENT

NISAR HUSSAIN KHAN, J.--- Instant revision petition is directed against the
judgment and decree of learned Additional District Judge, Peshawar, dated 25-2-2011, and that
of learned Civil Judge, Peshawar, dated 13-5-2010, whereby suit of respondent-plaintiff was
concurrently decreed by both the Courts below.

2. Succinctly stated facts of the case are that, respondent-plaintiff filed a suit for declaration
to the effect that he is owner in possession of property measuring 12 Kanals, 5 Marlas and 8
Sarsai, out of 204 Kanals and 6 Marlas, bearing Khata No.322/934 and Khasra No.5322/3759,
without mentioning the revenue estate, where does the property exist. He claimed that Mutation
No.4079, attested on 30-3-1994, was the result of fraud and collusion of predecessor of the
defendants-petitioners and the Revenue officials inter se, which is ineffective on his rights. The
suit was contested by the defendants-petitioners by filing written statement wherein they
controverted the allegations of the respondent-plaintiff. They averred in the written statement
that suit property, after purchase, is in their possession, on which, they have raised huge
construction worth of lacs. They particularly challenged the veracity and genuineness of the
Fingers Print Expert Report, on the basis of which, suit was filed by respondent-plaintiff by
describing it as fraudulent and result of collusion. In light of divergent pleadings of the parties,
eleven issues were framed by the Trial Court. It appears that petitioners-defendants, during
pendency of the suit, filed an application on 16-12-2008, for referring the thumb-impression of
respondent-plaintiff to the FSL for report, as to whether with the passage of 14 years, the
characteristics of thumb-impression vary or otherwise? The report of the FSL, received with the
observation that the thumb-impression on original Mutation No.4079, is different from samples
of right and left thumb-impression of Mr. Umar Khitab plaintiff-respondent. In light of the FSL
report, and allegedly on the basis of joint statement of the parties, with regard to decision of the
case, on the basis of FSL report, the suit was decreed by learned trial Court and appeal filed
thereagainst by the petitioners-defendants, was dismissed by learned Appellate Court. Hence,
this revision petition.

3. Learned counsel for petitioners argued that both the Courts below were not justified to
decree the suit merely on the basis of FSL report, whose author, has not been produced in the
Court nor petitioners have been provided an opportunity to cross-examine him. He maintained
that petitioners have specifically raised objection of improvement in their written statement, as a
consequence whereof, Issue No.9 was framed, on which, neither any finding has been given by
both the Courts below, nor an opportunity of leading evidence provided to petitioners; that FSL
report, without examining its author, is no evidence, at all.

4. As against that, learned counsel for respondent argued that both the parties recorded their
joint statement before the Court that case be decided on the basis of FSL report and learned trial
Court has acted on the wish of the parties. Learned counsel contended that there is only a Tube-
well in the suit property, and possession of petitioners is, as tenants therein.
5. I have given my anxious consideration to the respective submissions of the learned
counsel for the parties and have gone through the available record with their valuable assistance.

6. It is evident from the plaint that though plaintiff-respondent has mentioned Khata
number, and Khasra number along with measurement, but it is nowhere disclosed that in which
revenue estate, the suit property situates. It is the basic requirement of Order VII, rule 3, C.P.C.
that when subject-matter of the suit is an immovable property, the plaint shall contain description
of the property, sufficient to identify it. The purpose of this provision is that, if a decree is drawn,
it should contain specific description of the property so that there may not be a confusion or
hardship at the time of its execution. It is established law that the Court shall not pass a vague
decree, terms of which, cannot be ascertained with reasonable exactitude, which later on, may
not be executed. The decree should be of such a nature that the Executing Court should execute
the same, without going beyond it or making its own interpretation with regard thereto. In the
instant case, in such backdrop, the defendants-petitioners may raise an objection that though
Khasra number is mentioned in the plaint, but in which revenue estate the same is situated is not
disclosed so it does not relate to the suit property. It is strange that this crucial aspect of the case
has escaped notice of both the Courts below. Had the two Courts below adverted thereto, the
deficiency could have been removed at the initial stage.

7. Admittedly, suit Mutation No.4079 was attested on 30-3-1994. The suit has been filed on
3-4-2006, after a period of more than 12 years. It is also admitted at the bar that petitioners-
defendants are in possession of the suit property. Though, construction has not been specifically
admitted, but Tube-well installed therein, is conceded. These are the questions which need not be
dilated upon by this Court at this stage, lest it may prejudice the case of either side. As, these are
the questions, which require evidence. However, being, relevant facts, to be considered at the
time of final adjudication of case.

8. Petitioners-defendants objected on the earlier report of the FSL, Peshawar, on the ground
that plaintiff-respondent being a retired police employee has collusively procured the same and
requested for its transmission to FSL Islamabad for analysis and report. The application so filed
before the learned trial Court, does not contain any such stipulation that on obtaining FSL report
from Islamabad, suit of respondent-plaintiff be decreed. However, it is stated at the bar that joint
statement of the parties was recorded that suit be decided on the basis of FSL report. There are
two important questions to be resolved. Firstly, whether an Expert opinion, is an evidence of
such a character, on the basis of which, in absence of any other evidence, suit may be decreed?
And secondly, whether the offer, if any, made by the parties, should be made basis for
determination of their rights, without recording evidence?

9. So far as, report of the Expert is concerned, that is admittedly a circumstantial evidence.
Undoubtedly, circumstantial evidence, in absence of direct evidence, is a weak type of evidence,
unless it is corroborated by other strong pieces of evidence. When the Expert is also not
examined in the Court to substantiate his report or offer himself for cross-examination it loses its
efficacy. In "Allah Dino and 2 others' case (1974 SCMR 311), report of the Expert, who was not
examined in the Court, was not considered by the Hon'ble Supreme Court. Similarly, in Syed
Muhammad Umar Shah's case (2004 SCMR 1859), Expert opinion, being a weak piece of
evidence was also not considered by their lordships.

10. In light of the consistent view of the apex Court, Expert opinion, is a weak type of
evidence which cannot be relied upon for determination of rights of the parties, in absence of any
other corroborative piece or evidence.
11. Now the question is as to whether petitioners-defendants are precluded to raise objection
on the report of FSL, about which, they have consented themselves. It is settled law that
admission of a party in ignorance of a legal right, is not binding on the maker. Likewise,
admission being wrong on point of fact is also not admissible. While petitioners-defendants were
under illusion or delusion that the report shall not come against them, so they made the offer, not
in their application, but allegedly, later on. The language and tenor of their application clearly
suggest that they were under the impression that this was a wrong report obtained by the
plaintiff-respondent by exercising his influence in the FSL. So, under that impression, they have
made the offer that case be decided by referring the thumb-impression to any other Laboratory,
out of Peshawar. It is also an admitted position that offer made by the petitioners, was not with
clarity of mind or knowledge, but was the result of misconception about the prospective and
existing report of the FSL, which was erroneous in its character. In terms of Article 34 of the
Qanun-e-Shahadat Order, 1984, an admission, even though, if considered to be a legal one, is a
relevant fact, which clearly connotes, that the admission is not a conclusive proof against a party,
making it. It is also provided in the said Article that the admission so made, can be proved, so in
such a situation, the other side may prove the same to be wrong on the point of fact. On the other
hand, respondent-plaintiff, after making offer, if any, has not changed their position, which may
create estoppel. However, in peculiar backdrop of facts of the case, the offer so made by
petitioners for sending the thumb-impression to the FSL, is not an admission, as defined in
Article 30 of the Qanun-e-Shahadat Order, 1984, as it is nowhere admitted by them that these are
not the thumb-impressions of the plaintiff. Rather, they have controverted the allegation of the
plaintiff in explicit terms, so they referred the matter to other FSL. This was a situation which is
even not covered by Article 163 of the Qanun-e-Shahadat Order, 1984. In this respect reliance
placed on case titled "AHMAD KHAN v. RASUL SHAH AND OTHERS" (PLD 1975 Supreme
Court 311) and case titled, "QABIL SHAH AND OTHERS v. SHADAY" (PLD 1992 Peshawar
144).

l2. Thus, in view of legal and factual aspects of the case, learned trial Court was required to
proceed with the case by inviting the parties to lead evidence on issues framed, particularly,
when the petitioners-defendants have raised specific plea of improvement in the suit property. In
such circumstances, both the courts below have erred in law by decreeing the suit of respondent-
plaintiff, without recording evidence, merely on the basis of FSL report, which is not a safest
way for dispensation of justice.

13. In wake of the above discussion, judgments and decrees of both the Courts below, being
the result of patent violation of the law as well as non-adherence to the law applicable to the
points involved in the matter are illegal which are not sustainable. Though, the High Court
normally does not interfere in the concurrent findings of facts recorded by two Courts below, but
when there is gross and patent violation of the law causing grave miscarriage of justice, the High
Court, is under legal obligation to rectify the error by interference in such illegal findings.
Reliance placed on case titled, "Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR
1001" and case titled, "Mushtari Khan v. Jehangir Khan" (2006 SCMR 1238 and case titled,
"Ghulam Muhammad and 3 others v. Ghulam Ali (2004 SCMR 1001), Thus, by following the
command of law declared by the apex Court and statutory provisions of section 115, C.P.C.
instant revision petition is allowed, impugned judgments and decrees of the two Courts below
are set aside and consequently, case is remanded to the trial Court for decision afresh, after
recording pro and contra evidence. Parties are directed to appear before the trial Court on 29-3-
2013. Needless to mention that office shall ensure transmission of record forthwith. No order as
to costs.

HBT/107/P Case remanded.