Qadarmand and others Vs Israeel etc

JUDGMENT SHEET

IN THE PESHAWARHIGH COURT PESHAWAR

JUDICIAL DEPARTMENT

CR No.242-P/2021 with CM Nos.46l & 462-P/2021

JUDGMENT

Date of hearing l3th March, 2025

Petitioners (Qadarman & another) By Mr, Tajdar Faisal Khan (Marwat), Advocate,

Resoonden t(s) (Israeel) By Mr, Tariq Kakar, Advocate.

S. M. ATTIOUE SHAH. Ae^I.- Petitioners through the present petition have expressed their grievance against the judgments and; decrees of both the leamed Courts below dated 27.11.2018 and; 29.10.2019 respectively, whereby, respondent's suit for recovery of Rs.5,00,000/- and; Rs.8,00,000/- has been concurrently decreed against them.

2 In essence, case as alleged in the plaint is that Qadarman (petitioner/defendant No.l) purchased a Motorcar bearing registration No.SD-05 l, from Israel (respondent/plaintiff) against a sale consideration of Rs.12,85,000/- through a Bargain Receipt No.808, dated 08.06.2014, which is duly signed by petitioner/defendant No.l as well as the marginal witnesses viz. Nek Muhammad and; Noor Ullah. Out of the aforesaid sale

amount, petitioner/defendant No.l paid a sum of Rs.7,85,000/- as eamest money while the remaining amount of Rs.5,00,000/- is still outstanding against him. Further alleged that on 14.10.2014, petitioner/defendant No.l called the respondent/plaintiff to receive his remaining amount and; pursuant thereto, he along with Tahseen Ullah, Inayat Ullah and; Asim went to the house of petitioner/defendant No.l where instead of payment, he snatched Rs.7,00,000/- from the respondent/plaintiff while Mahir (petitioner/defendant No.2) snatched Rs.1,00,000/- from Tehseen Ullah, regarding which, a proper FIR No.l59 was registered against the petitioners/defendants. The said suit was contested by the petitioners/defendants through filing written statement, wherein, they raised various legal and;

factual objections. After framing the desired issues, recording pro and; contra evidence and; hearing leamed counsel for the parties, learned trial court decreed the suit through impugned judgment and; decree dated 27.11.2018.

Being discontented, petitioners/defendants filed an appeal, which was dismissed by the leamed Appeal Court through impugned judgment and; decree dated 29.10.2019. Hence, instant revision petition by the petitioners/defendants before this court on 03.03.2021.

3.Arguments heard and; available record gone through.

4.Record reflects that the respondent alleged in his plaint that petitioner No.l had purchased a motorcar lctirq CkefJtac. S M lttiqu. Slldh

bearing registration No. SD-051, model 2010, for the sale consideration of Rs. 12,85,000/- through a bargain known as "Sherpao Motors House," situated at Sherpao Adda. Out of the aforesaid sale consideration, petitioner No. I paid a sum of Rs.7,85,000/-, while the remaining amount of Rs.5,00,000/- was outstanding against him. In this regard, a proper bargain receipt No. 808, dated 08.06.2014 was scribed in the presence of two witnesses, namely Naik Muhammad and; Noor Ullah. The said receipt is duly signed by the aforesaid witnesses as well as petitioner No. 1.

On 14.10.2014, petitioner No. 1 called the respondent and;

asked him to come and; collect the remaining outstanding amount of Rs.5,00,000/-. Pursuant thereto, the respondent along with his brother Tehseen Ullah, Inayat ur Rehman, and Asim (residents of Sherpao), went to Bari Koruna, where petitioner No.1 not only refused to pay the remaining sale consideration of Rs.5,00,000/-, but also snatched Rs.7,00,000/- from the motorcar of the respondent.

Additionally, his brother (petitioner No.2) also snatched Rs.1,00,000/- from the respondent's brother, Tehseen Ullah.

Thereafter, the respondent requested the petitioners to return the snatched amount, but his request was in vain, which prompted him to lodge FIR No.l59, dated 76.10.2014, under sections 365/384 PPC at Police Station Sro Kalay, against them.

5.In order to prove his claim, the respondent himself appeared before the court as PW.1 and reiterated

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the same facts as mentioned in the plaint. During cross- examination, he admitted that the transaction took place between the parties in respect of the aforesaid motorcar in bargain which belongs to his elder brother Fazal-e-Subhan who in tum rented out the same to one Wali Muhammad.

He further admitted that neither he has produced the said Wali Muhammad before the court nor the bargain receipt (Ex.PW.l/l) bears his signature. He further admitted that the case in respect of FIR (Ex.PW.l/2) is subjudice before the court at Shabqadar. Naik Muhammad appeared before the court as PW.2 who deposed that petitioner No.l purchased the vehicle in question from the respondent against the sale consideration of Rs.12,85,000/-, out of which Rs.7,85,000/- had been paid by him while a sum of Rs.5,00,000/- is still outstanding against petitioner No.l and in this respect, receipt No.808 dated 08.06.2014 (Ex.PW.l/l) was scribed in his presence which bears his signature. During cross-examination, he stated that he is marginal witness to Ex.PW.1/1. He further deposed that the bargain is rented out to Wali Muhammad who use to scribe the bargain receipts by himself. Noor Ullah appeared before the court as PW.3, who narrated the same facts as disclosed by PW.2. However, he during the course of cross- examination not only admitted the payment of Rs.7,85,000/- to the respondent by petitioner No.l but also the fact that the bargain is rented out to Wali Muhammad.

Inayat-ur-Rehman while appearing before the court as lt;B) td sabJJutie s M. a&qwsh.h

PW.4, deposed that in order to collect an arnount of Rs.5,00,000/- from petitioner No.l, he along with the respondent went to his house, where seven persons duly armed with Kalashnikovs entered, searched them, covered their faces, snatched from the vehicle, Tehseen Ullah and;

his possession by force and; also obtained his signature over a stamp paper beside asking him to give a surety in this respect. He further deposed that petitioner No. l, instead of giving Rs.5,00,000/-, committed such act with them. He further deposed that vehicle No.SD-051 was purchased by the respondent from one Jehanzeb, whereafter he sold the same to petitioner No.l and then, the latter sold it out to Jamil Badshah, through receipt (placed on file). Tehseen Ullah appeared before the court as PW-5, who deposed that he went with the respondent to his house where they sat in the hujra when in the meanwhile , 06 I 07 persons came and seaxched them and; took from his pocket, Rs.1,00,000/- while, from the pockets of respondent Rs.12,000/-, Inayat- ur-Rehman Rs.l500/-, Asim Rs.2500/- and also threatened them that they will hand over them to Taliban. He further deposed that besides the aforesaid amount, Rs.7,00,000/- were taken from the vehicle. During cross-examination, he admitted that neither he was present at the time of transaction regarding the ibid vehicle between petitioner No.1 and respondent nor he is in knowledge of the same.

Self stated that he is witness of the criminal case. Jamil Badshah appeared before the court as PW.6. He deposed 6q A.nns chielraetu s M Atqt.lihah

that in the year 2014, transaction qua vehicle was made and he purchased vehicle No.SD-051, model 2010 from petitioner No.2. However, during cross-examination, he in unequivocal terms admitted that he paid a sum of Rs.7,00,000/- on behalf of the petitioners to the respondent.

He further admitted that nothing is outstanding in respect of the ibid vehicle. He further admitted that the respondent has filed a suit for the recovery of Rs.5,00,000/- while he has already paid a sum of Rs.7,00,000/- on behalf of the petitioners to him and as such, there is nothing outstanding in respect of the vehicle in question. He further admitted that he has been produced for recording evidence before the court by the respondent and also admitted his signature on the receipt (Ex.PW.4/l). He further admitted that after pa)rrnent of aforesaid amount to the respondent, the petitioners handed over him the transfer letter and number plates of the vehicle. PW.7, Asim also deposed about the factum of snatching amount and registration, however, he during cross-examination, stated that the instant suit has been filed by the respondent against the petitioners on account of some dispute of his brother with the petitioners.

As against that, petitioner No.2 for himself as well as attomey on behalf of petitioner No.l appeared before the court as DW-l and; deposed that his brother was in need of Rs.5,00,000/- for which they approached the respondent/plaintiff, who had given the said amount to them with fixation of Rs.2,000,000/- as interest for a period

of thee months and; that after the expiry of said period, he demanded the said arnount which prompted them to sell out their vehicle No.SD-051 to one Haji Jamil and; he paid their entire liability viz. Rs.7,00000/- on their behalf to the respondent/plaintiff and; that despite payment of aforesaid amount, still the respondent lodged an FIR against them in order to receive interest on interest. He was subjected to lengthy cross examination but he struck to his stance and in the process while clariSing the matter stated that bargain receipt (Ex.PW-l/l) is fake and; bogus and; that he purchased the motorcar No.SD-051 at Peshawar and;

thereafter, sold it to one Haji Jamil (PW-6). Further clarified that the said Haji Jamil paid their entire outstanding amount along with interest viz. Rs.7,00,000/- to the respondent and; the latter produced him before the court, who recorded his statement as PW-6, which is correct. Zakir Ullah appeared before the court as DW-2 who fully supported the stance of the petitioners as narrated byDW-I.

6.In view of the aforesaid evidence adduced by the parties, it is crystal cleax that the respondent has miserably failed to substantiate his plea regarding the sale of the motorcax beaxing No. SD-051 for the sale consideration of Rs.12,85,000/-, the receipt of earnest money amounting to Rs.7,85,000/-, the non-payment of the outstanding amount of Rs.5,00,000/- and; the execution of bargain receipt No. 808, dated 08.06.2014 through cogent,

reliable and; confidence-inspiring evidence, particularly, in the circumstances when he failed to produce the star witness, namely Wali Muhammad, in whose bargain the alleged sale transaction regarding vehicle No. SD-051 was made. Furthermore, according to the statement of Naik Muhammad (PW-2), he himself scribes the bargain receipt in respect of sale transactions made in his bargain; however, the bargain receipt relied upon by the respondent was neither scribed by him nor bears his thumb impression or signature. The non-examination of the said witness would invoke the provision of Article 129(9) of the Qanoon-e- Shahadat Order, 1984, leading to an adverse inference that had the said witness been examined, he would not have supported the respondent's stance. Moreover, the respondent produced and; examined Haji Jamil as PW-6 before the leamed trial court. However, instead of supporting the respondent's stance, Haji Jamil unequivocally admitted the petitioners' claim regarding the purchase of the vehicle in question from them as well as the payment of the entire outstanding amount to the respondent on their behalf. He even admitted that there is nothing outstanding in respect of the vehicle in question. As such, the respondent cannot resile from the deposition made by his own witness. In these circumstances, it can safely be concluded that the respondent has failed to substantiate his claim for the recovery of Rs.5,00,000/- allegedly outstanding against petitioner No. I in respect of the vehicle

in question through the evidence of unimpeachable character.

7.So far as the claim ofthe respondent regarding the taking away of Rs.7,00,000/- from his vehicle and; the snatching of Rs.1,00,000/- from his brother, namely Tehseen Ullah, by the petitioners is concemed, suffrce it to say that the said incident was reported by him to the local police of PS Sro Kalay and; a proper FIR No. 159, dated 16.10.2014, under sections 3651384 PPC was lodged against the petitioners. In that case, they have already been acquitted by the leamed Judicial Magistrate-I, Shabqadar, by invoking the provisions of Section 249-A Cr.P.C. through a judgment dated 27.03.2019. A bare perusal of ibid judgment reflects that the prosecution miserably failed to prove its claim regarding the taking away of the aforementioned amount from the vehicle as well as from the respondent's brother through cogent and confidence- inspiring evidence. In the instant case too, the evidence adduced by the respondent during the trial is not confidence-inspiring, particularly in light of the fact that PW-I, PW-4, PW-5, and PW-7, in their examination-in- chief, did not cleaxly state that the petitioners snatched the aforesaid amount from them. Instead, they testified that the amount in question was snatched by some 6 or 7 unknown persons, who, according to their narration, were Taliban.

Moreover, PW-4 and; PW-7 did not specifu the amount that was snatched from them in their examination-in-chief. In ChielJune SMAiqrcShah

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the attending circumstances of the case, the respondent has miserably failed to prove that the aforesaid amount was snatched or taken away from him and; his companions by the petitioners through cogent, reliable and; confidence- inspiring evidence.

8.Such legal and; factual aspects ofthe case have not been properly appreciated by both the leamed courts below while decreeing the recovery suit of the respondent through their impugned findings, which suffer from gross illegality and; material inegularity or for that matter, misreading and; non-reading of evidence. As such, impugned findings are not sustainable in the eye of law in the peculiar facts and; circumstances ofthe case.

9.Now, moving towards the question of limitation, undoubtedly, instant revision petition is hopelessly barred being filed beyond the period of limitation, as provided under the second proviso of section I l5 CPC and; that is how, an application for condonation of delay has been filed by the petitioners therewith. It is settled law that revisional court even can exercise its suo moto jurisdiction to ensure effective superintendence and;

visitorial powers to make sure the strict adherence to the safe administration ofjustice and; may correct any error unhindered by technicalities. Haji Musharraf Mahmood Khan (deceased) through LRs vs. Sardarsda Zafar Abbas (deceased) through LRs and others [PLD 2024 Supreme Court 588J. It is also well settled that the

question of limitation, or any similar technicality, would never be an impediment in exercise of suo moto powers by the High Court under section I 15, C.p.C, when administering justice and; undoing illegal, unlawful and;

jurisdictionally flawed orders . Mst. Banori vs. Jilani through LRs and others IPLD 2010 Supreme Court I1B6J.

Besides, it is an established principle of law that a time- barred revision petition cannot deprive the revisional court to exercise its corrective and; supervisory jurisdiction. If a revision petition is filed beyond the prescribed period or suffers from procedural lapses but meets the conditions for exercising suo moto jurisdiction, the revisional court may treat such a petition as information to correct errors of jurisdiction committed by subordinate courts. Hafeez Ahmad and others v. Civil Judge, Lahore and others IPLD 2012 SC 4001. In view thereof, it is crystal clear that when this court is vested with the power to exercise corrective and; supervisory jurisdiction in terms of section ll5 CPC and; even suo moto, then the question of limitation in the pursuit of complete justice would never stand in its way. In the attending circumstances, petitioners' application for condonation of delay is accepted and; the delay in filing the instant revision petition is hereby condoned. As stated earlier, both the leamed courts below, while decreeing the recovery suit of the respondent against the petitioners have committed gross illegality and; material irregularity, therefore, the impugned findings warrant

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interference by this court through the present revision petition in the attending circumstances ofthe case.

10.Resultantly, this petition is allowed, impugned findings of both the leamed courts below are set aside and;

in tum, suit of respondent/plaintiff stands dismissed being devoid of any merit.

Announced.

Dated: 13.03.2025.

A G CHIEFJUSTICE

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