Sheikh Zahid Farooq Vs Momin Rizwan etc

Stereo. HCJDA 38.

Judgment Sheet

IN THE LAHORE HIGH COURT LAHORE

(JUDICIAL DEPARTMENT)

Civil Revision No.74142 of 2019 Sheikh Zahid Farooq.

Versus Momin Rizwan, etc.

JUDGMENT

Date of hearing: 23.10.2026 Petitioner by: Mr. Abid Hussain Khichi., Advocate.

Respondents: M/s Ch. Nasrullah Nasir Bhatti, Farman Ahmad Bhatti and Rana Mazhar Ali Khan, Advocates.

ASIM HAFEEZ, J. This Civil Revision involves decisions at variance, whereby the Trial court had dismissed declaratory suit, instituted on 09.09.2010 by respondents No.1 to 4, through their mother, wherein they had sought declaration to cancel sale deeds No.1431 and 1432 dated 25.11.2008 and mutations No.15439 and 15438, recorded on the basis of aforesaid deeds (‘impugned documents’), on the premise that children of Sh. Rizwan Ahmad, pre-deceased son of Sh. Ijaz Ahmad, are entitled to their respective share in the estate of their paternal grandfather [Sh. Ijaz Ahmad].

Petitioner, beneficiary of impugned documents, claimed that properties, comprising of factory and house (‘subject matter properties’), were sold by his father [Sh. Ijaz Ahmad] against consideration and transactions were recorded through deeds. And claim of respondents was denied. The Appellate

Court reversed the decision and decreed the suit. Hence this Civil Revision.

2.Facts essential for adjudication of lis are that one Sh. Ijaz Ahmad owned subject matter properties, whose son Sh. Rizwan Ahmad predeceased him in 2007. Widow of Sh. Rizwan Ahmad had claimed maintenance allowance for the children of Sh. Rizwan Ahmad and she, while acting for the minors, sued Sh. Ijaz Ahmad and petitioner; Sh. Zahid. Mother of the heirs of Sh. Rizwan Ahmad also instituted suit, claiming that subject matter properties were purchased from the consideration paid by Sh. Rizwan Ahmad and Sh. Ijaz Ahmad and petitioner were benamdars.

Sh. Ijaz died on 13.08.2010, when said suit was pending. After demise of Sh. Ijaz Ahmad, mother of the minors filed another suit, which is for cancellation of impugned documents. Petitioner contested the matter who, besides supporting execution of the documents, sought dismissal of suit on the basis of admissions made during the course of previous proceedings. Upon conclusion of the trial, the Court of first instance dismissed the suit. Decision was reversed by the Appellate Court and suit of respondents was decreed.

3.The petitioner’s case, as advocated by his counsel, is that the Appellate court had failed to appreciate admissions made by mother of respondents No.1 to 4, while appearing as PW-1 in suit claiming Benami and alleged acknowledgment by Sh. Ijaz Ahmad while appearing as witness in proceedings before Family Court and in course of filing constitutional petition. In particular, reference is made to documents exhibited as Exh-D6, Exh-D9, Exh-D14 and Exh-D15. Learned counsel emphasized that mother appeared as PW-2, in suit under reference, where she was confronted with her previous statement, as per the requirement of Article 140 of Qanun-e-Shahadat Order, 1984

(‘QSO’), hence, her admission is admissible in terms of Article 35 of QSO. Further submits that marginal witnesses, bank officials and witness of registration of deeds were produced to prove execution, which overwhelming evidence was misread by the Appellate court. Adds that fraud alleged was not proved; Sh. Ijaz Ahmad remained alive for two years after execution of impugned documents but he had not questioned legality thereof. Learned counsel refers cases of Aamir Afzal and another V. S. Akmal (deceased) through L.Rs. and 2 others (2024 SCMR 1649), Shehwaar and 2 others V. Muhammad Riaz and others (2018 YLR 1938), Abid Sherani V. Tahir Sherani through Legal Heirs and others (2024 CLC 333) and Shafi-ul-Ibrar through L.Rs. V. Central Government through Secretary Defence Division, Rawalpindi and 2 others (2019 MLD 1371). Lastly submits that impugned documents were not tendered in evidence, therefore, reliance is misconceived. Cites cases of Manzoor Hussain (deceased) through L.Rs. V. Misri Khan (PLD 2020 SC 749) and Khawaja Javed Mehmood V. Punjab Small Industries Corporation through Regional Director Rawalpindi and 2 others (2024 CLC 1503).

4.Conversely, learned counsel for respondents No.1 to 4 contends that transaction of factory was portrayed as change of ownership without affecting charge of mortgage but neither mortgaged and nor factum of redemption was proved. Adds that transaction was otherwise hit by Section 23 of the Financial Institution (Recovery of Finances) Ordinance, 2001. Learned counsel placed reliance on Muhammad Hussain and 5 others V. Ghulam Qasim and 7 others (2008 CLC 224), Shamshad Ali Shah and others V. Syed Hassan Shah and others (PLD 1964 Supreme Court 143), Nazir Ahmad and another V. Yousaf (PLD 2011 Supreme Court 161), Muhammad Boota V. Mst. Rashidan Bibi and others (2008 SCMR 343), Ghulam Farid and another V. Sher Rehman through LRs. (2016 SCMR 862),

Rab Nawaz and others V. Ghulam Rasul (2014 SCMR 1181), Khan Muhammad V. Muhammad Din through LRs. (2010 SCMR 1351) and Amjad Ikram V. Mst. Asiya Kausar and 2 others (2015 SCMR 1).

5.Heard. Record perused.

6.Before dilating upon the questions of admissibility of documents, credibility of claim and probability of evidence available, it is imperative to comprehend the matrix of litigation to understand background of the statements made.

Father of minors, respondents No.1 to 4, had died, whose widow claimed maintenance from Sh. Ijaz Ahmad [paternal grandfather of the minors] and the petitioner, who was running the factory / business. It is apparent from the record that grandfather was reluctant to concede to the claim of minors and contested litigation, who made utmost effort to prove fact of having limited resources – this led to the denial of ownership in subject matter properties. In August 2010 grandfather died and in September 2010 widow, acting for minors, questioned impugned documents. And petitioner defends proprietary rights on the premise of alleged admissions / acknowledgements. Following legal issues need determination.

a) What is the effect of previous statements of mother of the minors?

b) Whether oral evidence of Sh. Ijaz Ahmad constitutes an admission in terms of Article 35, read with Article 31 of QSO.

c) What is the effect of statements made by Sh. Ijaz Ahmad in suit for maintenance and facts pleaded in constitutional petition. And whether such

acknowledgments have relevance under Article 47 of

QSO

d) Whether underlying transactions were proved.

7.Purpose of reading previous testimony of mother of respondents No.1 to 4 was to show that she had admitted that properties were managed by and in the name of the petitioner. It is claimed that previous statements were confronted to her. Context of previous testimony has been misconstrued, wherein lady alleged that Sh. Ijaz Ahmad and after his death, petitioner and his son, were ostensible owners and her husband was the actual owner – one who had actually made investment for acquiring properties. Statement in suit for declaration [Benami] was recorded on 31.05.2010, which was after execution of impugned documents. Mere acknowledging presence of documents does not amount to admitting its legality and execution, which have had to be proved by beneficiary thereof. Above all, nowhere lady admitted that transaction was valid and for lawful consideration - a qualified statement is not an admission. Even otherwise, if assertion qua transaction was treated as lady’s knowledge, no adverse effect would be caused when suit was within the limitation; from the date of knowledge or date of execution of impugned documents.

There is another ambiguity regarding compliance of Article 140 of QSO, where specific portion of previous statement has to be confronted if element of contradiction has to be proved. Once specific portions were not confronted no advantage under Article 140 of QSO is claimable.

8.Petitioner intends to draw advantage from previous statement, oral and written, of Sh. Ijaz Ahmad by construing it as an admission by the owner in support of sale of subject matter properties. Statements of Sh. Ijaz Ahmad have to be

construed in the context of character of litigation. Statements need to be dissected into oral and written form. Sh. Ijaz Ahmad made statement in maintenance suit on 12.11.2008, when he opened his statement by claiming status of owner and volunteered that he gave those to petitioner. Statement was made before the execution of sale deeds and such self-serving statement, to avoid fair disclosure of resources in suit for maintenance, lacks credence – petitioner being representative in interest cannot take advantage of said statement in absence of fulfilment of conditions indicated in Article 34 of QSO.

And now if written statement filed by Sh. Ijaz Ahmad in suit for declaration - [Benami suit] - by widow of Sh. Rizwan Ahmad – where she claimed that her husband was real/actual owner – and constitutional petition filed by Sh. Ijaz Ahmad constitute admission. Written statement and constitutional petition were drafted and submitted on 26.11.2008 and 21.01.2010 after execution of impugned documents and in respect whereof no admission could be claimed under Article 31(3)(a) of QSO for the reason that Sh. Ijaz Ahmad had alienated properties and had no proprietary or pecuniary interest therein. Hence, no question of admission arises.

9.Statement of Sh. Ijaz Ahmad dated 12.11.2008, even if relevant under Article 47 of QSO, but does not establish the truth of facts therein – who claimed to be owner but stated that same were given to the petitioner – intent was to avoid claim of maintenance allowance. At that point in time impugned documents were not executed so reference to ownership of petitioner was presumptive. Impugned documents were allegedly executed on 25.11.2008. Even if said statement is relevant but pertinent question is that whether it deserves due weightage. Firstly, the context of the statement is relevant, where Sh. Ijaz Ahmad was suppressing his actual financial

position to evade obligation of payment of maintenance allowance. Secondly, no weightage can be extended to the statement when transactions in question were not proved independently. Thirdly, said transactions were made during pendency of the litigation, which manifest avoidance of claim of minors.

It is evident from the contents of deed for sale of factory that mortgage loan was swapped by the father in favour of his son. Officials from the bank appeared as witnesses from both sides but crucial fact was not proved, which is that how mortgage was created and satisfied, and if at all it was satisfied why sale deed was retained by the Bank. The reason is simple that liability was adjusted before 25.11.2008 but petitioner preferred to leave property with Bank to create semblance of encumbrance to avoid share of the minors. Despite reference to NOC issued by the Bank to enable alleged transaction no document was produced in the evidence. And if at all there was mortgage charge then production of mortgage deed or memorandum of deposit of title deed was essential, but needful was not done. No evidence was led to prove payment of mortgage debt by alleged beneficiary – petitioner. It is evident that transactions were carried out to deny right of the children of predeceased son, which divest transactions of element of free will and good faith. It is highlighted that transactions were conducted after the filing of suit for declaration by widow of Sh. Rizwan Ahmad, who claimed that her husband was real owner. Timing of the transactions exposed the intent. Why would father sell house to his son except one reason and that is to defeat the claim of minors. Even otherwise, no benefit could be claimed on the basis of Exh. D-6, D-9, D-14 and D-15 as said documents were produced on the statement of counsel and after completion of cross examination of petitioner’s witnesses; hence, they fail test of admissibility. Judgments referred to by

learned counsel for the petitioner are distinguishable on facts. In these circumstances, I find no reason to interfere with the decision of the appellate court, which is hereby affirmed.

10.Accordingly, the titled Civil Revision is hereby dismissed. No order as to costs.

(ASIM HAFEEZ)

JUDGE

Asim Shahzad*

Approved for reporting

JUDGE