Roidad Khan etc Vs Khurshid Muhammad etc

Judgment Sheet

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Civil Revision No.422-P/2017

Roidad Khan and others....................Petitioners. Versus Khurshid Muhammad and others......Respondents.

Present:

Mr. Muhammad Amin Khattak Lachi, Advocate, for the petitioners.

Mr. Amin-ur-Rehman Yousafzai, Advocate, for the respondents.

Date of hearing:

JUDGMENT

MUHAMMAD IJAZ KHAN, J.- Through the instant revision petition filed under Section 115 of The Civil Procedure Code, 1908, petitioners have challenged the judgment and decree of learned Additional District Judge-I, Kohat dated 14.04.2017, whereby the appeal filed by the respondents/defendants against the consolidated judgment and decree of learned Civil Judge-I, Kohat dated 26.07.2014 was allowed and thereby dismissed Suit No.13/1 filed by the present petitioners and decreed Suit No.14/1 filed by the respondents/defendants.

2.Precisely, the facts giving rise to the filing of the instant revision petition are that initially the

present petitioners then plaintiffs filed Suit No.13/1 on 26.08.2010 for declaration to the effect that the suit house was the ownership of their predecessor- in-interest, namely Rahim Dad Khan, which he had constructed by incurring a huge amount and as respondents/defendants No.1 to 7 were their close relatives and they were not having any house for their residence, therefore, their predecessor, out of benevolence and humanitarian consideration, handed over the possession of the said house to them and as such they are not the owners of the suit house; however, when recently, the petitioners then plaintiffs demanded from them to vacate the said house, they blatantly refused the same and assert themselves to be the owners of the said house, which necessitated the filing of the instant suit.

3.After the filing of the aforesaid suit by the petitioners/plaintiffs, the respondents/defendants, after eight (08) months, filed their Suit No.14/1 on 01.04.2011 for declaration to the effect that they are owners of the suit house, apparently on the basis of an oral gift executed by Mst. Sadiq Jan alias Sadu Jan, who is the grandmother of the present petitioners and as such they prayed that the present petitioners then plaintiffs have no right to deny the title or to interfere in their possession. Both these

suits were consolidated, and as many as ten (10) consolidated issues were framed, and then evidence was recorded in Suit No.13/1 of the present petitioners then plaintiffs, who in support of their claim produced as many as four (04) witnesses. In rebuttal, the respondents/defendants produced as many as five (05) witnesses and ultimately, Suit No.13/1 filed by the petitioners/ plaintiffs was decreed except for the payment of rent, whereas Suit No.14/1 of the respondents/ defendants was dismissed vide consolidated judgment and decree dated 26.07.2014. Feeling themselves aggrieved of the aforesaid judgment and decree, the respondents/defendants preferred an appeal before the Court of learned Additional District Judge-I, Kohat, who vide the impugned judgment and decree dated 14.04.2017 was pleased to allow the same and thereby reversed the judgment and decree of the learned trial Court by dismissing Suit No.13/1 of the present petitioners and decreed Suit No.14/1 filed by the respondents/defendants; hence, the instant petition.

4.Arguments of both the learned counsel for the parties were heard in considerable detail and the record perused with their valuable assistance.

5.Before dilating upon the merits of the case, it would be appropriate, rather essential, to understand the inter-se relations of the parties and in this regard, the pedigree table of the petitioners/plaintiffs is as under;

عثمان خان

سکينہ جان استعمال جان صادق جان رحيم داد خان ()بيٹی ()بيٹی ()بيوه )بيٹا( مدعيان

The aforesaid pedigree table would show that Usman Khan was survived by a son, namely Rahim Dad Khan, who is predecessor-in-interest of the present petitioners then plaintiffs, two daughters, namely Istimal Jan and Sakeena Jan and a widow, namely Sadiq Jan. The said Mst. Sadiq Jan was having two brothers, namely Niaz Muhammad and Sultan Muhammad. The respondents/defendants are the legal heirs of said Niaz Muhammad and Sultan Muhammad, and thus keeping in sight the aforesaid inter-se relationship of the parties, now this Court would proceed to decide the case of the parties on its own merits.

5.It is/was the case of petitioners/plaintiffs from the very inception that the suit house was the ownership of one Usman Khan, who was survived

by their father, namely Rahim Dad Khan, their grandmother, namely Mst. Sadiq Jan and their paternal aunts, namely Istimal Jan and Sakeena Jan and as such the said house has devolved to them being their inherited property and in support of their this contention, they have produced the revenue record through Patwari Halqa, namely Farid Gul Khan, who has appeared in the Court as PW-1, and who has produced the relevant revenue record pertaining to the suit house/property and in this regard, he has produced Jamabandi for the year 1973-74, which was exhibited as Ex.PW-1/4 as well as Jamabandi for the year 2008-09, which was exhibited as Ex.PW-1/5. The said revenue record would show that after the death of their predecessor-in-interest, namely Usman Khan, the suit house/property had devolved upon his widow, namely Sadiq Jan, his son, namely Rahim Dad Khan (predecessor-in-interest of the present petitioners) and his two daughters, namely Istimal Jan and Sakeena Jan, as per their respective shares, whereas the predecessors-in-interest of the respondents/defendants, namely Niaz Muhammad and Sultan Muhammad, have been recorded as Ghair Dakhalkaran ()غيردخلکاران. The said record further shows that after the death of Mst. Sadiq Jan,

her inheritance mutation was executed in favour of Rahim Dad Khan, Istimal Jan and Sakina Jan vide mutation No.2719 dated 16.03.2002. The Jamabandi for the year 2008-09, which was exhibited as Ex.PW-1/5, would further show that after the death of Rahim Dad Khan in the year 2004, the said property has been devolved upon the present petitioners, namely Roidad Khan and others and thus as per the revenue record, the predecessor-in-interest of the present petitioners then plaintiffs and then they themselves are recorded as owners of the suit property, whereas the predecessors-in-interest of the respondents/ defendants since 1973-74 till in Jamabandi Zar-e- Kar (زرکار ِ )جمعبندیhave been recorded as Ghair Dakhalkaran and thus the revenue record so produced by Patwari Halqa supports the version of the petitioners/plaintiffs to the effect that they are owners of the suit house, whereas the status of the respondents/defendants is that of Ghair Dakhalkaran ()غيردخلکاران.

6.It would also be relevant to mention here that it was also the case of petitioners/plaintiffs from the very inception that since the predecessors-in- interest of the respondents/defendants, namely Niaz Muhammad and Sultan Muhammad, were the

brothers of Mst. Sadiq Jan (their grandmother) and as they were not having a house for their residence, therefore, their predecessor-in-interest had allowed them to live in the suit house and on the other the revenue record so produced by PW-1 and PW-2 would also show that the predecessors-in-interest of the respondents/defendants have been recorded as Ghair Dakhalkaran, therefore, the stance as was pleaded by the petitioners/plaintiffs in their plaint is in line with the revenue record and thus the possession of the suit house of the respondents/ defendants was not on the basis of their title but on the basis of benevolence and humanitarian ground, allowed by the predecessor-in-interest of the petitioners/plaintiffs; however, the learned appeal Court while reversing the judgment and decree of the learned trial Court has attached undue weight to such kind of possession of the respondents/ defendants. Needless to mention here that such nature of possession could not be treated as possession of the party, claiming title of the suit as on both grounds i.e. the permission of the petitioners/plaintiffs to live in the said house being their close relatives as well as on the basis of available record being recorded as Ghair Dakhalkaran.

7.As against this, it is/was the case of respondents/defendants that they are in possession of the suit house on the basis of an oral gift, which was executed by Mst. Sadiq Jan in favour of their brothers, namely Niaz Muhammad and Sultan Muhammad, and the consideration for the said gift mutation was stated to be to the effect that since the husband of Mst. Sadiq Jan was murdered and when by then Rahim Dad Khan (predecessor-in-interest of the petitioners) was minor and as the said Niaz Muhammad and Sultan Muhammad had taken care of the said enmity and pursued the same, therefore, Mst. Sadiq Jan had gifted the suit house to them;

however, on the available record, the respondents/ defendants have miserably failed to prove the very consideration for the said gift as gift. Neither any oral nor any documentary evidence has been adduced by the respondents/defendants to prove that, in fact, Usman Khan, the husband of Mst. Sadiq Jan had been murdered and thereafter Niaz Muhammad and Sultan Muhammad (predecessors-in-interest of the respondents) had been pursuing the cases or handling the other affairs. Similarly, the respondents/defendants, neither in their pleadings nor in their Court statements, have uttered a single word that as to when, where and in whose presence

the said oral gift was made. Likewise, they have also not uttered a single word that at the time of oral gift, all the ingredients i.e. declaration by Mst. Sadiq Jan, its acceptance by Niaz Muhammad and Sultan Muhammad and of course, delivery of possession on the basis of said gift have been made, rather as against this when DW-4 appeared in the Court, he, in his examination-in-chief, has only stated that;

مکان متدعويہ کی تہہ زمين ميری پهوپی مسماة صادق عرف صادو جان نے ميرے والد اور ميرے چچا کو ہبہ کی تهی۔

and in the cross-examination, he has made the following admission;

ميں مکان متدعويہ کے تہہ زمين1970 مسماة صادق جان نے جب اپنے دو بهائيوں ميرے والد سلطان محمداور چچا نياز محمد کو ہبہ کی اس وقت ميں موجود نہيں تها ۔ Similarly, when Mst. Istimal Jan, the daughter of Mst. Sadiq Jan, appeared in the Court as DW-5, she in her cross-examination has also admitted as under;

مجهے علم نہيں کہ ميری والده نے اپنے بهائيوں کے حق ميں مکان متدعويہ کے تہہ زمين ہبہ کرنے کے بعد کوئی تحرير کی تهی يا نہيں ۔

In view of the above facts and

circumstances, when the respondents/defendants have neither uttered a single word qua the date and

place nor they have uttered a single word qua the three essential ingredients for a valid gift i.e.

declaration by the donor, its acceptance by the donee and delivery of possession thereof nor they have produced any marginal witness of the same, then they have not been able to prove the execution of a valid gift and as such a decree could not be granted in their favour on the basis of such incomplete and legally inadmissible evidence. It merits to mention here that in order to prove oral gift as against a written gift, certain conditionality must be observed, and such conditions have been elaborated and determined by the Hon’ble Apex Court time and again in the case1, where it was held that under the Muslim law, the constituents and components of a valid gift are tender, acceptance, and possession of property. It is also obligatory that the donor divest and dissociate himself from the dominion and ownership over the property of the gift and put into words his categorical intention to convey the ownership to the donee distinctly and unambiguously with the delivery of possession of the property and ensure that the donee has secured physical ascendency over the property to constitute “Muhammad Dawood vs. Mst. Sakeena Farooque alias Aziza and others” reported as 2025

SCMR 1229

the delivery of possession. In a case2, the Hon’ble Apex Court has held that under the Islamic Law, a gift, in order to be valid and binding upon the parties, must fulfil the following three conditions:-

(a)a declaration of gift by the donor;

(b)acceptance of gift by the donee; and (c) delivery of possession of corpus.

On the fulfilment of the above three ingredients, a valid gift comes into existence. A valid gift can be effected orally, if the prerequisites are complied with. Written instrument is not the requirement under the Muslim Law nor is the same compulsorily registrable under the Registration Act, 1908. The Apex Court in another case3 has held that the petitioner failed to mention the date, time and place of the alleged gift. Further, he omitted to mention the names of witnesses in whose presence his father allegedly gifted the property in his favour and disinherited his sisters (Respondents). Likewise, there was no mention of acceptance of the gift in presence of witnesses in the written statement as required by law. It is settled law that the onus to establish the factum and ingredients of the gift is on the beneficiary who claims such gift and which is denied or challenged by the other legal heirs.

“Muhammad Ejaz and two others vs. Mst. Khalida Awan and another” reported as 2010

SCMR 342

“Muhammad Srawar vs. Mumtaz Bibi and others” reported as 2020 SCMR 276

Similarly, the Apex Court in its judgment rendered in the case4 has also held that indeed, if a document in the form of memorandum of gift has been executed between the parties (donor and donee) as an acknowledgment of past transaction of oral gift, its non-registration will not have much bearing as regards its authenticity or validity, but the other important thing is the proof of fulfillment of three conditions of a valid gift "offer", "acceptance" and "delivery of possession". Similar view was again reiterated by the Apex Court in the case5, where it was held that the concurrent findings given by the learned Courts below are based on the evidence on record and are in accordance with law. The petitioner was under an obligation to establish the ingredients of the gift claimed by him under the impugned mutations. However, no particulars whatsoever of the time, date, place and witnesses of the declaration of the gift made by Ghulam Muhammad deceased in favour of the petitioner have been provided in his pleadings nor any evidence could be produced by him in this behalf.

This is fatal to the petitioner's plea. The Apex Court has gone to the extent that even in case of a registered gift deed, the incident of gift in terms “Mst.Saadia vs. Mst. Gul Bibi” reported as 2016 SCMR 662 “Peer Baksh through L.Rs and others vs. Mst.Khanzadi and others” reported as 2016

SCMR 1417

of date, day and time has to be established by the donee through independent, cogent, confidence inspiring, coherent and trustworthy evidence. In this regard, the Apex Court in a case6 has observed that the principal issue, whether the respondent-plaintiff Muhammad Tufail could claim as a legal heir of Gomaan, is settled by a concurrent finding of fact given by three learned Courts below. In the light thereof the rule laid down by this Court in Kulsoom Bibi v. Muhammad Arif (2005 SCMR 135) and Ghulam Haider v. Ghulam Rasool (2003 SCMR 1829) that a donee claiming under a gift that excludes an heir, is required by law to establish the original transaction of gift irrespective of whether such transaction is evidenced by a registered deed.

In the present case there is no evidence of declaration of gift or of its acceptance on record. The mere transfer of possession to a donee is not sufficient to constitute a valid gift under the law.

Furthermore, in the judgment of this Court reported as Barkat Ali v. Muhammad Ismail (2002 SCMR 1938) a gift deed as in the present case must justify the disinheritance of an heir from the gift. This is also lacking in the present gift deed which has not been proven satisfactorily as Ijaz Ahmed Khan, Advocate who identified Gomaan before the sub-Registrar “Farid and others vs. Muhammad Tufail and another” reported as 2018 SCMR 139

was not produced before the learned Trial Court nor was the sub-Registrar or the scribe of the documents and thus by applying the aforesaid yardstick to the case of respondents/ defendants, they have failed to prove the execution of a valid gift.

8.Since petitioners were plaintiffs in the suit in which evidence was recorded and as they had approached to the learned trial Court earlier in time by filing Suit No.13/1 and under Article 117 of The Qanun-e-Shahadat Order, 1984, if any person who desires to obtain a favourable decree from the Court of law is bound to prove all those facts, which he/she has taken in his/her plaint. Article 117 being relevant is reproduced below:-

“117. Burden of proof.– (1) Whoever desires any Court to give judgment as to any legal right of liability dependent on the existence of facts which he asserts, must prove that those facts exist.

(2)When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”

The aforesaid Article of The Qanun-e-

Shahadat Order, 1984 declares that any person who desires a Court to issue a judgment in his/her favour has to prove the existence of all those facts which he/she has pleaded in his/her plaint and in this case, the petitioners/plaintiffs have been successful to

prove all those facts which they have pleaded in their plaint as it was their case from the very inception that the suit property was the ownership of their predecessor-in-interest, namely Usman Khan, which has devolved upon his only son, namely Rahim Dad Khan, his two daughters, namely Istimal Jan and Sakeena Jan and his widow, namely Sadiq Jan and then on the death of Rahim Dad Khan and Sadiq Jan, the same has now develoved to them and in this regard, they have produced substantial material evidence in the form of revenue record, which supports their version. During the course of arguments, learned counsel for the respondents/ defendants tried to pin-point the weakness, lapses and lacunas in the evidence of the petitioners/ plaintiffs; however, it may be clarified that a party has to succeed on the basis of its own evidence, and it cannot derive any benefit from the evidence of its rival. In this case, the petitioners/plaintiffs have proved their claim through cogent and confidence inspiring evidence, whereas the respondents/ defendants have failed to prove the execution of a gift, which was the foundation of their case. In a case7, it was held by Hon’ble Apex Court that according to the Article 117 of The Qanun-e- “Nisar Ali vs. Muhammad Asghar” reported as 2022 SCMR 1054

Shahadat Order, 1984, if any person desires a court to give judgment as to any legal right or liability, depending on the existence of facts which he asserts, he must prove that those facts exist and burden of proof lies on him. The terminology and term of phrase "burden of proof" entails the burden of substantiating a case. The meaning of "onus probandi" is that if no evidence is produced by the party on whom the burden is cast, then such issue must be found against him. The burden of proof for the deceitful transaction rests normally on the person who impeaches it. In a suit for declaration alleging that the sale was fictitious, the onus is on the plaintiff to prove the same. Where the evidence of plaintiff was self-contradictory and not confidence inspiring then he must fail and where the case is doubtful, the decision must be given in favour of defendant rather than the plaintiff. It is a well settled exposition of law that the plaintiff must succeed on the strength of his own case rather than the weakness of the defendant. The lawsuits are determined on preponderance or weighing the scale of probabilities in which Court has to see which party has succeeded to prove his case and discharged the onus of proof which can be scrutinized as a whole together with the contradictions,

discrepancies or dearth of proof. It is the burdensome duty of the Court to detach the truth from the falsehood and endeavor should be made in terms of the well-known metaphor, "separate the grain from the chaff" which connotes and obligates the Court to scrutinize and evaluate the evidence recorded in the lis judiciously and cautiously in order to stand apart the falsehood from the truth and judge the quality and not the quantity of evidence.

Similarly, in a case8, the Lahore High Court has held that it is settled proposition of law that a party has to succeed on the basis of his own evidence and not on account of lapses in the case of his adversary.

9.It is also relevant to mention here that when once the plaintiff succeeds to prove his/her stance, then under Article 118 of The Qanun-e-Shahadat Order, 1984, the burden will shift to the defendant and then under Article 119 of The Qanun-e-Shahdat Order, 1984, such defendant who wishes the Court to believe existence of a particular fact, which he/she has pleaded in his/her written statement, then such defendant is also bound to prove the same. The aforesaid burden on such person is “Muhammad Latif vs. Bashir Ahmed and 7 others” reported as (2004 CLC 1010)

enrooted in Article 119 of The Qanun-e-Shahadat Order, 1984, which is reproduced below:- “119. Burden of proof as to particular fact: The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Illustrations (a) A prosecutes B for theft, and wishes the Court to believe that B admitted the theft, to C. A must prove the admission.

(b)B wishes the Court to believe that at the time in question, he was elsewhere. He must prove it.”

The aforesaid provision unmistakably cast duty on the respondents/defendants to prove all those facts which they have taken/agitated in their written statement qua the rights attached to the suit house; however, in the present case, the respondents/defendants have not been able to prove their stance especially qua the factum of it as they have not been able to brought on record any material whatsoever to establish the execution of a valid gift, therefore, they are not entitled for a favourable decree. In the case9, it was ruled by the Apex Court that as per Article 119 of The Qanun-e- Shahadat Order, burden of proof as to any particular fact lies on that person who wishes to believe the Court in its existence unless it is provided by law that proof of that fact lies on another person.

“Messrs Noorani Travels Karachi vs. Muhammad Hanif & others” reported as 2008 SCMR 1395

10.It would also be relevant to mention that in this case the revenue record produced by the concerned revenue officials would show that the present petitioners and their predecessor are recorded owners of the suit house/property, whereas the respondents/defendants are recorded as Ghair Dakhalkaran, therefore, even if the respondents/defendants allege themselves to be owners of suit house on the basis of an oral gift then in such eventuality too, as when they have been recorded in the revenue record as Ghair Dakhalkaran, therefore, in view of Article 115 of The Qanun-e-Shahadat Order, 1984, they are estopped to be permitted to deny that the petitioners/plaintiffs were initially having the title and later on they have lost the same due to the oral gift executed by Mst.

Sadiq Jan and thus under the aforesaid stated circumstances, petitioners/plaintiffs were required to have vacated the property and then they may establish their title or plea qua the ownership of property under tenancy/lease; however, in the present case, petitioners/plaintiffs are not vacating the possession and they are claiming the title of the suit house/property on the basis of an oral agreement, which their stance could not be legally

appreciated in their favour. In the case10, the Hon’ble Supreme Court has held that even otherwise it is settled principle of law that if a tenant denies the proprietary rights of the landlord then he is bound to first of all deliver the possession of the premises in-question and then to contest his proprietary rights in the property and if ultimately he succeeds in getting relief from the Court and decree is passed in his favour then he can enforce the same according to law with all its consequences.

11.It would also be relevant to mention that since the whole revenue record produced by the revenue officials is in favour of the petitioners/ plaintiffs and against the respondents/defendants keeping in view their respective stances and as under Section 52 of The Land Revenue Act, 1967, presumption of correctness is attached to such revenue record, therefore, such record is to be respected and regarded as against any oral assertion as was taken by the respondents/ defendants in the present case. It also needs clarification that as the learned appeal Court has attached weight to the possession of the respondents/defendants and then on the basis of “Barkat Masih vs. Manzoor Ahmad (deceased) through L.Rs” reported as 2006 SCMR 1068

the said longstanding possession, the suit of petitioners has been held as time barred; however, such possession was a permissive possession as it was the case of petitioners from the very inception that since the predecessors-in-interest of the respondents, namely Niaz Muhammad and Sultan Muhammad, were the brothers of their grandmother, namely Sadiq Jan and as such they were close relatives, therefore, the possession of the said house was handed over to them out of benevolence and courtesy and even the revenue record produced by the parties also loudly and clearly speaks that the predecessors-in-interest of the respondents are only recorded as Ghair Dakhalkaran, therefore, such possession being permissive could not create a right of title in favour of the respondents/defendants. In a case11, the Apex Court has held that the question of limitation finds no place in the suit on account of permissive possession of the appellants and the latter having carried out some improvements unilaterally also cannot claim for compensation.

12.It is also settled law that civil cases are to be decided on the basis of preponderance of evidence.

In the present case, the same surely tilts in favour of “Dilawar Shah and others vs. Jannat Gul through Legal Heirs” reported as PLD 2004 Supreme Court 59

petitioners/plaintiffs and as against this the respondents/defendants have not succeeded to put any legal weight in their scale so as to turn it in their favour and thus they have to face its consequences.

In a case12, the Hon’ble Apex Court has held that in civil dispensation of justice, courts are to adjudge the lis on the standard of preponderance of probability of evidence produced by the parties, and the decision of the court would tilt in favour of the party having preponderance of evidence. As for the burden of proving a fact is concerned, it gains importance and relevance only when no evidence is led by the concerned party or the Court is unable to take a decision, one way or the other, on the basis of evidence available on record of the case.

13.It is also settled law that in case of inconsistency of the judgment and decree between the appellate Court and the trial Court, the High Court shall see that as findings of which of the Court are based on proper appraisal of evidence and as such in this case after analyzing and evaluating the evidence on file, the findings of the trial Court are correct and as a result of proper appreciation of evidence, whereas the findings of the learned “Abdul Rehman & others vs. Mst. Allah Wasai & others reported as 2022 SCMR 399

appeal Court is the result of a total misapplication of law on the subject. In the case13, it was held by the Apex Court that in a case of inconsistency of judgment between the two Courts below, the High Court was supposed to give its findings after reappraisal of the entire evidence. It was further held in the aforesaid judgment that the settled law in this regard is that revisional Court in such like situation has to re-appraise the entire evidence just to determine as to findings of which Court were based on proper appraisal of evidence and appreciation of law. In another case14, it was held by the Apex Court that if the finding of fact reached by the first appellate Court is at variance with that of the trial Court and as such the finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. Our this view is fortified by a long chain of judgments of this Court i.e. Alloo v. Sher Khan and others (PLD 1985 SC 382), Abbas Ali Shah and 5 others v. Ghulam Ali and another (2004 SCMR 1342), Abdul Aziz v. Khuda Dad Khan (2004 SCMR “Mst. Azra Gulzar vs. Muhammad Farooq & another” reported as 2022 SCMR 1625 “Madan Gopal and 4 others vs. Maran Bepari and 3 others” reported as PLD 1969 SC 617

1046), Karim Bakhsh through L.Rs. and others v.

Jindwadda Shah and others (2005 SCMR 1518), Muhammad Din and others v. Mst. Naimat Bibi and others (2006 SCMR 586), Muhammad Hassan v.

Khawaja. Khalil ur Rehman (2007 SCMR 576) and Q.B.E. Insurance (International) Ltd. v. Jaffar Flour and Oil Mills Ltd. (2008 SCMR 1037).

14.In view of the above discussion and exposition of law on the subject, the impugned judgment and decree of the learned appeal Court dated 14.04.2017 is the result of misreading of evidence as well as of misapplication of law on the subject, therefore, the same is accordingly set aside, whereas the judgment and decree of the learned trial Court dated 26.07.2014 is restored and maintained.

Announced:

JUDGE

(S.B) Hon’ble Mr. Justice Muhammad Ijaz Khan (Shahid Nawaz, Steno)