Ansar Ullah Vs Rafi Ullah

PESHAWAR HIGH COURT, PESHAWAR

(JUDICIAL DEPARTMENT)

Civil Revision No. 215-P/2025

Ansar Ullah .........Petitioner.

Versus Rafi Ullah

..........Respondents.

For the Petitioner: Mr. Hassan UK Afridi, Advocate.

For the Respondents: Mr. Ihsan Ullah Khan, Advocate.

Date of Hearing: 16.12.2025

JUDGMENT

WIQAR AHMAD, J.- Brief facts of the case, as per contents of instant civil revision, are that respondent/plaintiff instituted a suit for recovery of Rs. 5,000,000/- along with fine of Rs.1,000,000/- on the basis of an alleged agreement deed dated 26.11.2021. Prior thereto, the parties were engaged in scrap business and on 26.11.2021 they allegedly settled their accounts and separated their business affairs. It was claimed that on the same date a jirga was convened wherein it was agreed that the petitioner/defendant would pay Rs.800,000/- in advance on 25.12.2021 and the remaining amount of Rs.4,200,000/- in monthly installments of Rs.100,000/- commencing from 01.02.2022, with a condition of fine of Rs.100,000/- in case of default. The petitioner/defendant denied execution of the alleged agreement deed as well as the liability to pay the claimed amount and contested the suit by

filing written statement. After framing of issues and recording of evidence of the parties, learned Civil Judge-I, Hangu decreed the suit vide judgment and decree dated 21.09.2024.

Feeling aggrieved, the petitioner/defendant preferred an appeal which was dismissed by learned Additional District Judge-III, Hangu vide judgment dated 08.01.2025. Hence, the present civil revision petition against the impugned judgments and decrees passed by both the courts below.

2.Arguments heard and record perused.

3.Perusal of record reveal that respondent had instituted a suit for recovery of Rs. 50,00,000/- as principle amount while Rs. 10,00,000/- as the amount over above the liability but affirmed an agreement dated 26.11.2021. Regarding said issue specific recital had been made in the plaint which were totally denied by petitioner in the written statement who was defendant before the learned civil court. Additionally, petitioner also made a setup of Rs. 11,00,000/- in his written statement and made prayed for recovery of said amount in his written statement. In order to substantiate his claim, the plaintiff/respondent examined Muhammad Shoaib, Deed Writer, as PW-01, who stated that the agreement dated 26.11.2021 was scribed by him and the same was exhibited as Ex.PW-1/1. He further produced the relevant register and exhibited page No.935 dated 26.11.2021 as Ex.PW-1/2, wherein the contents of the impugned agreement were reproduced. During cross-examination, PW-01 admitted that

the stamp paper used for the impugned agreement was issued in the name of the plaintiff on 25.11.2021 and that the purpose of issuance of the stamp paper was not mentioned on its reverse. He further admitted that at the time of issuance of the stamp paper, the plaintiff and defendant No.1 were present.

PW-02, the plaintiff himself, deposed that a jirga was held on 26.11.2021 in which the defendants admitted their liability of Rs.5,000,000/- towards the plaintiff. He stated that the defendants agreed to pay Rs.800,000/- on or before 25.12.2021 and the remaining amount of Rs.4,200,000/- through monthly installments of Rs.100,000/- starting from February, 2022. He further stated that the defendants also agreed that in case of violation of the agreement dated 26.11.2021, they would pay Rs.1,000,000/- as fine. During cross-examination, PW-02 admitted that he possessed no documentary proof regarding the alleged joint scrap business with the defendants and that no such documents were annexed with the plaint. He also admitted that the agreement confronted to him was the same impugned agreement and it was exhibited as Ex.PW-2/X-1. He further stated that both parties initially invested Rs.500,000/- each in the business. In reply to another question, he stated that the agreement was scribed on the instructions of one Maaz and at the direction of jirga members. He further stated that out of the jirga members, two were from the plaintiff’s side while Maaz, Muhammad Majeed and Abdul Wahid were from the defendants’ side, and

that the jirga was held on 26.11.2021. PW-03 Abdul Wali son of Muhammad Wali, marginal witness, stated that the agreement Ex.PW-1/1 was scribed in his presence and bears his signatures and thumb impression. He stated that there was a dispute regarding joint scrap business between the parties which was resolved through jirga, wherein the defendants admitted the plaintiff’s claim of Rs.5,000,000/- and agreed to pay Rs.800,000/- on 25.12.2021 and the remaining Rs.4,200,000/- through monthly installments of Rs.100,000/- commencing from February, 2022. He further stated that the defendants also agreed to pay Rs.1,000,000/- as fine in case of violation of the agreement. PW-04 Muhammad Majeed Gul son of Khaista Gul, also a marginal witness, reiterated the statement of PW-03 regarding the execution of the agreement, the jirga settlement, the admitted liability of Rs.5,000,000/-, payment schedule of Rs.800,000/- by 25.12.2021, remaining Rs.4,200,000/- in monthly installments of Rs.100,000/- from February, 2022, and fine of Rs.1,000,000/- in case of default.

During cross-examination, he admitted that the impugned agreement was scribed on the day following the jirga and further stated that he was a jirga member representing the defendants.

4.On close of evidence of respondent, petitioner was invited to evidence. Petitioner deposed in support of his defence in the suit, as DW-1. In his examination in chief he disowned factum of the execution of the agreement. He

waived off his claim of Rs. 11,00,000/- and resiled therefrom expressly. He was also attorney for defendant No.2 in the suit and power of attorney was exhibited as Ex. DW-1/1. His cross examination was quiet interesting where he made direct and indirect admissions regarding agreement dated 26.11.2021 Ex.PW-1/1 as well as the incorporated transaction. This part of cross examination of petitioner is of utmost significance, same is therefore reproduced for read reference;

ميں محمد مجيد گل گواه-Ex PW 1/1 - کو جرگہ فيصلہ ہوا26.11.2021 - ميرا رشتہ دار نہيں ہے بلکہ اقرار نامہ کا گواه ہے۔ زيارت گل گواه بهی ميرا رشتہ دار نہيں ہے بلکہ اقرار نامہ کا گواه ہے۔ محمد معاز بهی ميرا رشتہ دار پر- EX PW 1/1 نہ ہے بلکہ اقرار نامہ بالا کا گواه ہے۔ يہ درست ہے کہ ميرا نام انصار الله افغان کار درست طور پر درج ہے۔ از خود کہا کہ ميں حيران و پريشان ہو کہ ميرا نمبر اقرار نامہ پر کيوں درج کيا ہے۔ اقرار نامہ / 1 ميں فريق دوئم ميرا بهائی فر زنگ بهی فريق اقرار نامہ ہے۔ اقرار نامہ لاکه روپے کا11 ہمارے مابين تحرير ہوا تها۔ ہمارے مابين-Ex.PW 1 لاکه روپے ميرے مدعی کے خلاف دعويداری11 تنازعہ تها۔ از خود کہا کہ تهی۔ ميں نے کوئی دعويداری يار پورٹ مدعی کے خلاف تاحال دائر نہيں کی۔ لاکه روپے تهے۔ اقرار نامہ مذکوره تحرير1 از خود کہا کہ مدعی پر ميرا کرنے سے ايک ہفتہ قبل ہمار ار تم متد عويہ پر مدعی کے ساته لڑائی ہوئی تهی۔ ہمارے مابين ہتہ پائی ہوئی تهی کوئی مجروح نہيں ہوا تها اور نازيبہ کے تحرير اور ميں کے بعد-Ex.PW 1/1 الفاظ کا تبادلہ ہوا تها۔ اقرار نامہ ميں نے کوئی رقم ادا نہيں کی البتہ مدعی کے ذمے کوئی رقم نہيں ہے۔ Respondent have produced sufficient evidence in respect of proof of the deed dated 26.11.2021 as well as the incorporated transaction. This evidence has also been discussed above. Both the courts have rightly relied on such evidence and decreed the suit. Two deeds had come on record on dated 25.11.2021 and the other was dated 26.11.2021 but there was no difference in the contents and inconsistency therein which fact had sufficiently been explained by lower courts in its judgment. Said fact could not be construed to the detriment of the case of respondent.

5.So far as plea of learned counsel for petitioner that an Arbitration agreement unless and until declared rule of the court could not be relied upon for any purpose, it is firstly observable that decision of an arbitration is required to be declared rule of the court for the purpose of its enforceability or its execution as a decree of the court. Same may will be relied upon as a piece of evidence even if not declared to be rule of the court under section 14 of the Arbitration Act. This has expressly been laid down in the case of Haji Nawab Din v. Sh. Ghulam Haider and others reported as 1988 SCMR 1623 ratio of which has been relied by learned counsel for petitioner. The proposition upheld in the other judgment relied by learned counsel for petitioner was also to the effect that the award of the Arbitrator is mandatorily required to be declared rule of the court under section 14 of the Arbitration Act, 1940 for the purpose of its enforceability or execution as a decree of the court. Here the situation was otherwise, firstly the agreement Ex.PW-1/1 was not an award of Arbitrators. Before the agreement, there is nothing that the parties had appointed arbitrators in writing or that the Jirga members therein had ever assumed the role of arbitrators or conducted any proceedings which could be equated with arbitration. It was simple Jirga decision where parties were also members and the parties had agreed on the terms incorporated in the agreement.

Petitioner had owned a liability for payment of Rs.50,00,000/- as per the scheme given in the agreement and also to pay Rs.

10,00,000/- as extra amount in case he could not act on the decision. The agreement has in fact been relied as a proof of the acknowledgment of the liability that petitioner was owing towards the respondent. Both the court below have not taken the decision as an award of arbitrators nor had held it an executable instrument. Same has only been relied as a piece of evidence for acknowledgement of liability by petitioner and there has not been any illegality in such exercise of authority by both the courts below. Reliance in this respect may be placed on Maj. (Retd.) Mian Badshah v. Major (Retd.)

Bahadur Shah (1994 SCMR 384).

6.In light of what has been discussed above, instant civil revision was found lacking substance and same is accordingly dismissed.

Announced on;

16th of December, 2025 *Zarshad* --sd--

JUDGE

(SB)Hon’ble Mr. Justice Wiqar Ahmad CR No. 215-P/2025