Mst. Mehwish Vs Tanveer Ahmad etc

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I

JUDGMENT SHEET

I]V THE PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(ludiciul Department) C. R No. 464- Al20l9 With CMs 18L/20, 268/21., 453/2L &. 178/23 Mst. Mehwish.

(Petitioner/s)

VS

Tanveer Ahmed & others.

(Respondent)

Present Mr. Agha Muham.mad Ali Khan, Aclt,ocate, for the petitioners.

S.M Munir, Advocate, and Mr. Tanvir Ahrned Mughal, Advocate, for respondents

Dates of hearingz 27.06.2023 & 17.07.2023

JUDGMBNT

MUHAMMAT) IJAZ KHAN. J.. Through the instant civil revision petition, petitioner has challenged the judgment & decree dated 14.09.2019 of learned Additional District .Tudge-tl, Abbottabad, who vide the same has dismissed the appeal No. 9912013 of 2019 filed by the present petitioner against the whole judgment and decree rt dated 11.04.2019 of leamed Civil Judge-VI, Abbottabad, who vide the same had par-tially decreed the suit filed by the respondent/plaintiff and allowed ihe cross-appeal No. 100/13 o1'2019 'fahir Salcenr (S.t].) llon'blc i\, r. Justicc Nluhamrnatl ljaz I(hln

filed by respondents/plaintiffs and thereby set aside the findings of the learned trial Court qua holding that respondents/plaintiffs have not been able to prove that Mst. Mehwish is the adopted daughter of deceased Asad Hussain.

2.Precisely the facts of the case leading to the filing of the instant revision petition are that the present petitioner namely Mst. Mehwish along with her siblings namely Faisal Shahzad Asad and Mst. Javeria Asad made an advertisement in Daily newspaper namely Nida-e-Hazara on 27.08.2017 asking objection from public at large to the ef-fect that they are legal heirs of Jan Muhammad alias Asad Hussain and as such are entitled for their Shori share in his legacy which aforesaid advertisement prompted the respondent Bashir Ahmed Mughal (now dead and represented by his legal heirs), who filed the suit for a declaration, f issuance of permanent injunction as well as lor possession as an alternative relief to the effect that he is the sole legal heirs of Asad Hussain, whereas, def'endant No. I to 3 including the present petitioner are the adopted children of said Asad Hussain. It was specifically pleaded in the plaint '[ahir Saleent (S.B.) Hon'ble Mr. Justice Muhammad ljaz Khan

J

that initially the said Asad Hussain was a female gender for more than 30 years of his life, however, lateron after surgery his gender changed from female to male but even thereafter he was not capable of producing children. It is further pleaded that predecessor of respondent/ plaintiff namely Haji Allah Din and deceased Asad Hussain were their common predecessor, therefore, he is his legal heir and is entitled of his legacy, whereas, the defendant No. I to 3, including the present petitioner being adopted children of said Asad Hussain are neither his legal heirs nor are entitled for the same.

3 When the above said suit was filed, the defendants were summoned and out of them the defendant No. I to 3 including the present petitioner filed their joint written statement, whereby, they denied the claim of the respondents/plaintiffs qua they being adopted children of deceased Asad Hussain, however, soon thereafter, the defendant No. 1 namely Faisal Shahzad Asad for himself and as an attorney for defendant No. 2 Mst. Javeria Asad recorded his statement wherein they admitted the claim/plea of Tahir Salccm (S.8.) Hon'ble Mr. Justice I! uhantntad Ijaz Kharr

the respondents/plaintiffs to the effect that they are adopted children of deceased Asad Hussain. In view of the aforesaid development, the present petitioner then defendant No. 3 submitted her independent written statement. In view of the divergent pleadings, of the parties the learned trial Court framed as many as three issues and the parties were required to produce their respective evidence. In support of their claim respondents/plaintiffs produced three witnesses i.e Mr. Tanvir Ahmed Mughal appeared for himself as well as an attorney on behalf of the rest of the LRs of Bashir Ahmed as PW-l and also produced Syed Amjad Shah as PW-2 and Arshad Munir as PW-03.

In rebuttal the petitioner, then defendant No. 3 produced Dr. Khalid Javed as DW- l, Muhammad Farooq, Legal Assistant, NADRA Office Abbottabad as DW-02, Muhammad Ayaz, maternal uncle of petitioner, as DW-03, Shahnawaz, the .0 9I cousin of petitioner's mother as DW-04, Sardar Aurangzeb as DW-05, the mother of petitioner namely Shamim Akhtar appeared as DW- 06 and petitioner herself appeared AS DW - 07, thereafter, the learned trial Court vide Tahir Saleenr (S.8.) Ilon'ble Mr. Justice i\'luhammad Ijaz Khan

impugned judgment and decree dated 11.04.2019 partially decreed the suit of respondents/plaintiffs by holding that since defendant No. 1 &. 2 have admitted the claim of respondents/plaintiffs, therefore, it was declared that they are not LRs of deceased Asad Hussain and they are not entitled of their shares in his legacy except one shop in his possession (as per the agreement between him and respondent/plaintiff), however, it was observed that neither the respondents/plaintiffs have proved that she was adopted daughter of the deceased Asad Hussain nor petitioner then defendant No. 3 has proved that she is the legitimate daughter of deceased Asad Hussain and as such the question of her paternity was left open, therefore, she was also not held as entitled in the legacy of deceased Asad Hussain

4.Both the parties being aggrieved from the aforesaid judgment and decree preferred their r respective appeals thereby petitioneridefendant No.

3 challenged the whole judgment and decree through appeal No. 99113 of 2019 whereas the respondents/plaintiffs challenged the findings to the effect that they have not been able to prove that 'I'ahir Saleem (S,l].) Ilon'blc I\Ir. ,lusticr i\luhamnratl Ijaz Kltatt

petitioner/defendant No. 3 was an adopted daughter of deceased Asad Hussain through their appeal No.

100/13 of 2019. Both these appeal were consolidated and after hearing both the parties appeal No. 99113 of 2019 filed by the petitioner was dismissed whereas appeal No. 100/13 of 2019 filed by respondents/plaintiffs was allowed vide second impugned judgment and decree dated 14.09.2019 which judgments and decree has now been challenged by the petitioner through the instant revision petition.

5.The record further shows that earlier this Court vide judgment/order dated 14.09.2020 allowed the instant revision petition and both the judgments and decree dated 11.04.2019 & 14.09.2019 were set aside and new issues were reframed and recasted by this Court and the case was remanded back to the learned trial Court with the direction to decide the same after providing opportunity to both the parties to produce their evidence with respect to issues so reframed/ recasted by this Court vide order and judgment dated 14.09.2020, however, the aforesaid order/ judgrnent was challenged by respondents/plaintiffs Tahir Salcem (S.8.) Hon'bh NIr. .Iustice Iluhanrnratl Ijaz Khrrt

before the Apex Court through Civil Petition No 2618 of 2020 which came up before the Apex Court on 01 .02.2021 and the same was allowed and the case was remanded back to this Court with the directions that since sufficient material is available on file to decide the controversies involved in the instant lis, therefore, it was directed that this Court shall decide the instant revision petition afresh in accordance with law vide order dated 01.02.2021 After receipt of the order of the Apex Court notices were issued to the parties who put their appearance and partial arguments in this case were heard on 27.06.2023 and for the remaining arguments the case was adjourned for today. Today again, detail arguments of both the parties were heard and the evidence and appended record was gone through with their able & honest assistance

6.The main contentions of the learned counsel for petitioner were that the Family Court .07 has no jurisdiction to decide the question of paternity. His second objection was that since Mst.

Mehwish i.e. the present petitioner has born during the substance of marrLage, therefore, she is presumed to be the daughter of Asad Hussain and Tahir Saleem (S,8.) Hon'ble Mr. Justice Muhammad Ijaz Khatr

his third objection was that both the Courts below have erred in law as the Court should always lean in favour of legitimacy of child and his last objection was that since neither petitioner Mst' Mehwish nor her mother have been confronted with her previous suits/statements recorded in the family suit, therefore, such judgment could not be considered against the petitioner. As against this learned counsel for the respondents/plaintiffs submitted that petitioner/ defendant No. 3 has not come to this Court with clean hands and she has suppressed the material facts and have intentionally avoided to bring the real truth before the Court of law, therefore, she was rightly non-suited. His next submission was that all the DWs have admitted the filing of earlier suits as well as their decisions of a competent Courl of law, therefore, their intentional ignorance about the fact that in the earlier litigations it was not declared that petitioner is not the daughter of Asad Hussain would be of no help for the petitioner. His last and third objection was that on one hand there are judgments of the competent Courts of law which favors the case of respondents/plaintiffs and on the other hand there are merely oral assertions of the petitioner, 'l ahir Saleem (S.B.) Hon'ble Mr. Justice Vluhammad ljaz Khan

therefore, under the law strong presumption of correctness and authenticity is attached to the judicial proceedings/record, therefore, the judgment of the appellate Court is based on legal, lawful & valid reasons, therefore, the same need to be maintained and upheld.

7.It is the case of respondent/plaintiffl Bashir Ahmed Mughal, now represented by his LRs that he and Asad Hussain deceased are from common predecessor and that defendant No. I namely Faisal Shahzad Asad, defendant No. 2 namely Mst. Javeria Asad and defendant No. 3 namely Mst. Mehwish (petitioner herein) were adopted children of deceased Asad Hussain therefore, it is he who is one of his LRs and thus is entitled for his legacy and defendant No. 1 to 3 (including the present petitioner) being adopted children of Asad Hussain are neither his legal heirs nor they are entitled to claim their legacy AS published by them in Daily newspaper namely Nida-e-Hazara. The aforesaid plea of the respondents/ plaintiffs is based on the grounds that the deceased Asad Hussain lived for 30 long years as female gender, however, later-on Tahir Saleem (S.8.) Hon'ble Mr.,lustice Muhammad Ijaz Khan

after surgery his gender changed from female to male but even thereafter he was not able to produce children, which stance of respondents/plaintiffs was admitted by two out of three stakeholders as it was al the initial stage of proceedings when good conscious prevailed with defendant No. 1 namely Faisal Shahzad Asad and defendant No. 2 namely Mst. Javeria Asad, who admitted the aforesaid plea of the respondents/plaintiffs as defendant No. 1 for himself as well as an attorney of defendant No. 2 recorded his statement before the trial Court and thereby admitted the claim of respondents/plaintiffs to the effect that they arelwere the adopted children of Asad Hussain whereas the present petitioner opted to contest the same by filing her independent written statement, therefore, in view of the above controversy(ies) involved in this /zs there are two r fold questions before this Court i.e. whether on the available record Asad Hussain was a normal potent person or he was a transgender and was not able to produce children/ and secondly as to whether the petitioner, then defendant No. 3, has proved that she is the offspring of the marriage tie of Asad Hussain with Shamim Akhtar or not?

Tahir Saleenr (S.8.) llon'ble Nlr. .lustice i\Iuhammad Ijaz Khan

1l

8.As for as question No. 1 is concern, it is the case of respondents/plaintiffs that initially Asad Hussain was a female gender with the name of Mst. Jan Muhammad and for 30 long years of his life he lived and was treated as a female gender, however, after surgery his gender changed from female to male but even after the change of gender from female to male he was incapable to produce children. The aforesaid plea find support from precious litigations which were personally contested by the deceased Asad Hussain with his two wives including the mother of the present petitioner as way back in 1982 and 1994 as a suit was filed by the first wife of Asad Hussain namely Mst. Mishbah Deedar for dissolution of her marriage on the ground of impotency of her husband i.e. Asad Hussain which is placed on file as Ex PW-1/4 (seven sheets). The contents of this plaint were gone through words by words and it revolves around a sole ground that in fact Asad Hussain was an impotent person and on this sole fr\l ground alone she had approached to the Judge Family Court for dissolution of her marriage which suit was ultimately decided on the basis of a compromise as deceased Asad Hussain succumbed to the Tahir Saleem (S.B') Ilon'ble lltr. .Iustice Muhammad Ijaz Khan

allegations of impotency vide judgment/decree dated 24.11.1982, whereby, the suit was decreed without any objection by the deceased Asad Hussain. Had deceased Asad Hussain was not an impotent person he would have definitely contested such serious allegations of impotency. It is relevant to mention here that the aforesaid suit was filed way back in the year, 1982 which is much before the present controversy which has arose in the year 2017, therefore, it is established from judicial record that throughout his life the said Asad Hussain remained an impotent person and as such was not able to produce children.

9.It is also relevant to mention here that the instant controversy that as to whether Mst.

Mehwish (present petitioner) is the daughter of Asad Hussain or not has indirectly been adjudicated in the past as the record of family suit No. 95lFC of t994 has been made part of the record as Ex PW- 1/8 and Ex PW-1/9 which shows that * after her separation from deceased Asad Hussain, a suit was filed by the mother of petitioner namely Mst. Shamim Akhtar for the recovery of her dower as well as for her maintenance allowance and she has also filed Tahir Salecm (S.8.) Hon'ble Mr. Justice Ntuhammad ljaz Khan

another suit for payment of maintenance amount for petitioner Mehwish when by then she was a minor of four years, however, the factum of Mehwish being the daughter of Asad Hussain and as such entitled for maintenance from his alleged father i.e. Asad Hussain, was seriously controverted by the deceased Asad Hussain in his life time and in this regard issue No. 9 was framed to the effect that whether minor Mehwish (now petitioner) is entitled for payment of maintenance allowance or not which issue after thorough discussion was decided against the present petitioner by holding that she is not entitled for the payment of maintenance amount and such flndings were based on the statement of her mother namely Shamim Akhtar who appeared in that case as PW-05 where she has admitted that Asad Hussain is/was an impotent person. The aforesaid judicial record of two suits which were filed by two difTerent wives 4* of the deceased Asad Hussain strongly shows that both the wives had categorically and candidly admitted before a Court of law that deceased Asacl Hussain was an impotent person. [t is also relevant to mention here that these allegations of impotency were levelled at the time when the said Asacl 'lahir Saleem (S.8.) IIon'ble Mr..Iustice Muhammatl ljaz l(hatt

Hussain was alive and consequently the findings of non-entitlement of petitioner for her maintenance were neither challenged by the present petitioner nor by her mother Shamim Akhtar, therefore, the present controversy had since been adjudicated upon and had attained finality for all legal and practical purposes. It is settled law since long that evidence recorded in earlier proceedings could be considered in subsequent proceedings. In the case of "Muhammad Saddique vs, The State" repofted as 2018 SCMR 71, it was held that statement of a witness recorded in earlier judicial proceedings or before any person authorized under the law to record the same became relevant for the purpose of proving those facts but it should be between the same parties or their representatives and that person should have been cross-examined during such process.

10.It was also noted with great concern that in the present case when the mother of .0Y petitioner namely Shamim Akhtar appeared in the court as PW-06 she was categorically confronted with the aforesaid previous judicial proceedings and thereby she has truly & honestly admitted the l-ahir Salccnt (S.l].) tlon'hle N{r. ,lrrstice l\'ltrhanrrnatl ljaz Khan

filing of the suit as well as the decision thereon, however, for ulterior and motivated reason she has shown ignorance about the crucial findings to the effect that in those earlier proceedings the petitioner was not found as entitled for the payment of maintenance amount from her alleged father i.e.

Asad Hussain on the ground that she has levelled allegation of impotency against him, therefore, such clever and intended ignorance could not be given any preference over the findings recorded in the said judicial proceedings. During the course of arguments it remained the main contention of the learned counsel for the petitioner that since neither the petitioner nor her mother Shamim Akhtar who have appeared as DW-06 and DW-07 respectively were confronted with the previous litigation, however, their cross examination would manifestly show that they were confronted in very clear terms but they remained more smart by showing ignorance about any decision qua non-entitlement of the petitioner for the payment of her maintenance amount from her alleged father i.e.

Asad Hussain, therefore, under the settled law it is the judicial proceedings which are to be considered and presumed as correct as against any other Tahir Saleenr (S.8.) Hon'ble Mr. Justice lVtuhammad ljaz Khan

assertions what to speak of oral assertion. In the case of "Government of Puniab through Secretary Cooperative Societies Department, Lahore & others vs, Asad Abbas" reported as 2022 SCMR 739, rt was held in para No. 4 that as per dictates of Article 91 of the Qanun-e-Shahadat Order, 1984, judicial proceedings have got sanctity and a presumption of correctness is attached to the proceedings before a judicial forum. This Court in the case of Muhammad Ramzan v. LDA (2002 SCMR 1336), has categorically held that "strong presumption of correctness and sanctity of high order is always attached to judicial proceedings.

Reliance is also placed on Fayyaz Hussain v. Akbar Hussain (2004 SCMR 964) and Waqar Jalal Ansari v. National Bank of Pakistan (2008 CLD 1202) Mere the bald statement of the learned Law Officer -a3 without any documentary proof cannot overturn the judicial finding".

11.It merits to mention here that to establish that the deceased Asad Hussain was an impotent person then it is to be seen that earlier deceased Asad Hussain had married to one Mst.

Misbah Deedar who happened to be a Nurse and it Tahir Saleent (S.8,) Hon'ble Mr. Justice Muhammad Ijaz Khan

is part of the evidence that defendant No. 1 Faisal Shahzad Asad and defendant No. 2 Mst. Javeria Asad were shown as her children, however, it is also part of the record that she has obtained the custody of defendants No. 1 from two different women and in this regard affldavits/lqrarnamas which are placed on file as Ex PW-1/4 which show that one of them was adopted from one Mst. Jamila Bibi d/o Ali Zaman and the other was adopted from one Mst. Mehfooz Bibi dlo Shahzullah which documents are sufficient to establish that deceased Asad Hussain was an impotent person and he was not capable to produce children.

12.In view of the above, documentary evidence including judicial record respondents/ plaintiffs have been able to prove either through their evidence and judicial record/evidence as well AS through crucial admissions made by the petitioner/defendant No. 3 or her witnesses that deceased Asad Hussain was an impotent person and thus he was not capable of producing children and as such the respondents/plaintiffs have been able to prove all those facts which they have pleaded in their plaint and thus they have discharged their 'fahir Salcern (S.8.) Hon'ble Mr.,lustice iVluhanrmad l.jaz Khan

burden of proof in a mode and manner as required by the law from them. It is relevant to mention here that under Article 117 of The Qanun-e-Shahadat Order, 1984 if any person who desired to obtain a favourable judgment from the Court of law is bound to prove all those facts which he has pleaded in his plaint. In this case, the Court has noted that all the facts which were agitated by the respondents/plaintiffs in their plaint have either been admitted by the petitioner/defendant No.3 or have been established the same from the previous judicial record, therefore, they have successfully discharged their burden to prove the existence of those facts. Article ll7 being relevant is reproduced below

tll Builcn ol uro[- (r) Whoever desires anv Court to sive judgment as to any legal right of liability dependent on the e+istence gf 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 favour, has to prove the existence of all those facts which he/they has/have pleaded in his/their pleadings and Tahir Saleem (S.8.) Hon'ble Mr. Justice Muhammad Ijaz Khan

accordingly the respondents/plaintiffs have proved all those facts on which they have based their claim. In the case of "Nisar Ali v/s Muh Asshar" reported as 2022 SCMR 1054 it was held by Hon'ble Apex Court that according to the Article ll7 of the Qanun-e-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 qf 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 rtt 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 Tahir Saleem (S.8.) Hon'ble Mr' Justice Nluhammad Ijaz Khan

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 rnade in terms of the well-known metaphor, ,r.s e oarctte the from the chaff" which connotes and obligates the Court to scrutinrze 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.

13.As far as the evidence of

r petitioner/defendant No. 3 is concemed, the same remained inconsistence, shaky and not worth reliable as when petitioner appeared in Court as DW-07 where she has stated that she is the real daughter of Asad Hussain and to substantiate this plea she has heavily relied upon on her school Tahir Saleem (S.8,) Hon'ble Mr. Justice Muhammad ljaz Khan

documents/certificate and fee deposit receipts which were exhibited as Ex DW-7/1 which documents though reflects that she is the daughter of Asad Hussain but legally these documents could only be considered if they were produced by its custodian but surprisingly petitioner has personally produced them, therefore, the same being produced from improper custody could not be legally considered and relied upon.

14.It was also noted that in this case petitioner has appeared as DW-07 where she has categorically stated that she has obtained her CNIC at the time of her marriage in the year, 2008 with the name of her husband and that she has obtained only one CMC, however, her this plea has totally falsified by her own witness namely Muhammad Farooq, Legal Assistant from NADRA Of1lce, who has categorically stated that the petitioner has obtained three CMCs and in this regard the scan ,r images of the petitioner were placed on file and were exhibited as Ex PW-4/D-4 to Ex PW-2/D-6. It was also noted and as transpires from the aforesaid exhibited documents produced by the Nr\DRA office that the petitioner has obtained her first Tahir Salecrn (S.ll.) Ilon'blc Mr. Justice \Iuhrmmad Ijrz Khan

CNIC with the name of her husband without showing her parentage and the perusal of the first application dated 12.04.2016 which was exhibited as Ex. PW-2/D-3 would show that petitioner has shown her father name as "Malik As ad". whereas, in the column of date of birth the same has been shown as 11.06.1989. Similarly, perusal of second scam image form dated 16.08.2017 which was exhibited as Ex. PW-2/D-5 would show that the petitioner for the first time modified/altered her father name fiom Malik Asad to Asad Hussain and interestingly the perusal of the third scan image dated 16.10.2018 which was exhibited as Ex PW- 2lD-6 would show that the petitioner has changed her date of birth from 11.06.1989 to 10.06.1990.

The aforesaid belated modification/alteration in terms of parentage and date of birth manifestly show the hiding intentions of the petitioner that she has tried her level best to prepare documents so as r to prove herself as daughter of Asad Hussain and such visible attempts become more significant when it is seen that it is the case of petitioner/defendant No. 3 that her mother married to deceased Asad Hussain in January, 1989 and thus her birth on 11.06.1989 was within six months l'ahir Salcenr (S.8.) Hon'blc I\'Ir. Justice S{uhamnrad Ijaz Kltan

of the malriage of her parents which surely falsifies the claim of petitioner/defendant being daughter of Asad Hussain. It was also noted that while obtaining her CNIC, the petitioner has shown defendant No. 1 Faisal Shahzad as her real brother, however, on one hand the said Faisal Shahzad Asad during pendency of suit has admitted the claim of respondents/plaintiffs that he is the adopted son of Asad Hussain and on the other hand it is also an admitted fact that the said Fasial Shahzad Asad was not her real brother as he was adopted by Mst Misbah Deedar from one Jamila Bibi, the earlier wife of deceased Asad Hussain which fact also shows that petitioner/defendant No. 3 has not led an honest and truthful evidence rather she has gone to every extent to prepare and maneuver document so as to prove herself as daughter of Asad Hussain. It is also very pertinent to mention here that petitioner namely Mehwish has not produced ,z document pertaining to the life time of deceased a single

Asad Hussain, in which she has shown herself as daughter of Asad Hussain as all these documents were prepared soon after the death of Asad Hussain on I I .08.2011.

'l'ahir Saleenr (S.8.) IIon'ble Mr. Justice Muharnmad Ijaz Khln

15.It is also relevant to mention here that in case of dispute of paternity, evidence of the mother is of much importance and in the present case though the mother of petitioner namely Mst.

Shamim Akhtar appeared as DW-06, however, her appearance in support of the claim of the petitioner/defendants goes a long way to destroy petitioner's case as it is part of the record that in 1994 the mother of petitioner namely Mst. Shamim Akhtar after separation from deceased Asad Hussain had filed two suits one for recovery of her dower as well as for payment of her maintenance allowance and another for payment of maintenance amount of Mst. Mehwish (petitioner herein) then minor and in those suits the mother of petitioner had appeared in Court as PW-05 where she has stated and admitted that her husband i.e. Asad Hussain is an impotent person and it was on the basis of the aforesaid admission that the then minor v now petitioner was not found as entitled for her maintenance amount, therefore, her subsequent statement recorded in this case by contradicting her earlier statement would be of no help for the petitioner for the reason that it is settled since long that when a party takes one stance at one point of Tahir Saleem (S.8.) Hon'ble Mr. Justice Muhammad ljaz Khan

time and another at subsequent time then such statement loose its credibility and the same could not be relied upon. In the case of Dr. b Shah vs. Pakistan Emplovees Coooerative Housing Societv Limited and 5 others reported as 2006 CLC 342, the Sindh High Court has held that to seek a lawful allotment of a residential plot in defendant No.1 Society a person must possess two basic qualifications. He must be an employee of Federal Government and must be a member/ shareholder of the defendant No.I Society. These qualifications are clearly spelt out in the License Agreement and byelaws of defendant No.1 Society as referred above. Thus, it was the proof of these two qualifications, which alone would have entitled the plaintiff to seek allotment in his name. Not only that the plaintiff admittedly did not possess these qualifications, he himself destroyed his own stand of being a member of the Society to that of a non- member who has simply entered into a contract V with the defendant No.l Society. When one stand is taken at one point of and a different stand at another. and both stands do not reconci le with each itself

that such on does not have a ne cause of Tahir Saleem (S.8.) Hon'ble Mr. Justice l\Iuhammad Ijaz Khan

action. The conflicting stands amount to destroying ones own cause of action and, therefore, the entire foundation of plaintiffs claim is to be treated as false. Similarly, in the case of Asif Mowiee vs.

Zaheer Abbps and others reported as 2015 CLC 877, itwas also held that as far as the contention of Mr. Jamshed Malik, regarding dismissal of the suit bearing No.17 of 2012 (Zaheer Abbas v. Atrf Mowjee and Bank Al-Habib) is concerned, the same is sel-f-destructive as on one hand the Applicant (Defendant No.l-Judgment Debtor) is challenging the 'consent decree' passed on 25.6.2012 through the application under section l2(2) C.P.C. and on the other hand the applicant claims to be a 'decree holder' after lapse of 45 days. The stand taken by leamed counsel for the Applicant is not onbt sel-f- destructive but also seficlashing. Not only is this the applicant also guilty of approbation and reprobation by taking in-consistent pleas. Of course, which leads to the conclusion that the a

applicant (defendant No. 1-judgment debtor) does not have any genuine aase.

16.It is settled law that the plaintiffs could not be allowed to draw any benefits from the lapses Tahir Saleem (S.8.) Hon'ble Mr. Justice Muhammad Ijaz Khan

or lacunas in the evidence of defendants and it is entirely for the plaintiff to prove their case independently as required under Article ll7 of The Qanun-e-Shahadat Order, 1984 and after successful discharge of such burden by a plaintiff, it would be thereafter that the burden would shift to the defendant and the law would require from him to prove his own stance as pleaded in the written statement. In view of the above discussion, the petitioner/defendant No. 3 has not been able to prove all those facts which she has pleaded in her written statement rather all the documents produced by her are totally inconsistent with each other and over and above her conduct to suppress the actual and true facts from the Court of law has rendered her evidence as not creditworthy to be relied upon and thus she has miserably failed to prove her stance as pleaded by her in her written statement through a cogent, trustworthy and confidence inspiring evidence. The aforesaid burden on suclt * person is enrooted in Article I 19 of The Qanun-e- Shahadat Order, 1984, which is reprocluced below ;-

119.rden of proof as to narticula r fact: The burden of proof as to any particular fact lies on that person who wishes the Tahir Saleem (S.8.) Hon'ble Mr' Justice Muhammad Ijaz Khan

Court to believe in its existence, unless it is provided by any law that the proof of that Iact shall lie on any particular person. lllustrations

(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 petitioner/defendant to prove all those f'acts which she has takenlagitated in her written statement qua the lbctum that she is the real daughter of Asad Hussain, but she could not prove the same through any positive and legally admissible evidence. In the case of "Me$ts lYoorani Truvels Karachi v/s Muhammud Hanif'& olhers" reported as 2008 SCMR 1395 it was held by the Apex Court that as per Article ll9 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

17.Now this Court will move forward to ^y address the contentions of the learned counsel for the petitioner. As far as the first ob.iection that a Family Court has no jurisdiction to decide the 'fahir Saleent (S.8.) Hon'ble IVIr. Justice Nltthammatl ljlz Khan

dispute of paternity, though there is no cavil to the aforesaid legal proposition, however, in the present case the judgment of the Judge Family Court has rightly been relied upon by the two fora below for the reason that in the family suits the question of paternity of Mehwish was not in dispute rather it was a suit with respect to payment of maintenance amount to her by her deceased father Asad Hussain' Since that family suit was contested by the deceased Asad Hussain in his life time and whereby in view of the stance of the mother of petitioner namely Shamim Akhtar that deceased Asad Hussain was an impotent person, therefore, it was on this sole ground that petitioner was not found as entitled for the payment of her maintenance allowance from her alleged father i.e. deceased Asad Hussain. In view of the above, the aforesaid objection of learned counsel for petitioner is repelled. As for as the second objection that Mst' Mehwish was born during substance of marriage, r suffice it is to say that there is no cavil nor disputed by respondent/plaintiff that Asad Hussain had married to Mst. Shamim Akhtar, hor,vever, when admittedly Asad Hussain was an impotent person and this factum has confirmed by nobody else but 'l'ahir Saleenr (S.B.) flon'ble Mr. Justice Muhamrnad ljaz Khan

by the mother of petitioner then in such state of affairs the birth of petitioner even during the substance of the marriage would not bless her with the parentage and paternity of Asad Hussain. More particularly, when it is part of the record that petitioner was born through a medical process. As far as the third objection of learned counsel for petitioner that Court should lean in favour of legitimacy of child, however, in the present case Court cannot force upon the legitimacy upon a person when it is proved from the judicial record that deceased Asad Hussain was female gender for 30 long years and changed his sex through surgery, however, thereafter too he remained an impotent person then in view of such undeniable materials legitimacy could not be forced upon the deceased husband. As for the last objection of the learned counsel for petitioner that since mother of petitioner Shamim Akhtar was not confronted with her previous statement/judgment recorded in the i? family suit is concerned this obiection too is prima facie incorrect as her cross-examination who appeared as DW-06 shows that she has time and again been confronted with previous suits and decisions as well as her statements, therefore, such 'l ahir Salcem (S,8,) Hon'ble Mr, Justice Muharnmad Ijaz Khan

3l

objection of the learned counsel for petitioner is also misplaced.

18.Learned counsel fbr the petitioner also relied on the two recent judgments of the Apex Court, however, these judgments are

distinguishable from the facts and circumstances of the present case. As far as the judgments of Apex Court in case of "Munir Hussain and others' vs Ri.ffq.t Shamim and others " reported as 2023 S(.MR 06 ts concerned, where it was held that paternity could not be challenged after the death of the father. Similarly in the case of Mst. Laila Qayvunr reported as PLD 2019 SC 449, it was his brother Fawad who after the death of his father challenged the paternity of his sister without any initiative by her to assert herself as daughter of Abdul Qayl'um or to claim her share in his legacy, however, the facts of the present case are totally distinguishablt:

as it was not respondents/plaintiffs who after death of Asad Hussain has initiated to file the instant suit for seeking negative declaration qua the paternity of defendant No. 1 to 3 including the present petitioner but it was the defendant No' I to 3 including the present petitioner who made an l'ahir Saleem (S.8.) Hon'ble Mr. Justice Muhammad ljaz Khan

advertisement in local Daily newspaper narnely l'{ida-e-Hazara on 27.08.2017 (al;ter fifteen deLy's of the death of Asad Hussain) whereby, they clairned to be the legal heirs of Asad Hussain and as such it was thereafter when respondents/plaintiffs riglrtly approached to the civil Court to seek a positive declaration for themselves and a negetIive declaration for defendant No. I to 3, therefore, due to the aforesaid compelling rearsons

respondents/plaintiffs have approached to the ,::ivil court by filing the instant suit" Had that advertisement not been published in the newspaper, the respondents/ plaintiffs would have not filed the instant suit or had the respondents/plaintitfs on their own filed the instant suit after the deattr of Asad Hussain then in such an eventuality the ibid judgement of Apex Court would have been attracted.

19.It is settled law since long that civil cases are decided on the basis ofpreponderance of evidence. In the present case the respondents/ d plaintiffs have on one hand pro<l.rced overwhelming evidence in the form of previours litigations and other documentary evidence: to l'ahir Saleem (S.l).) Hon'ble Mr..lusticc Muhammad ljaz Khan

establish their stance to the eff'ect that deceased Asad Hussain was a female gender who though after surgery changed fiom fernale to male but r:ven thereafter he was an impotent person and was not able to produce children and on the other hand the petitioner/defendant No.3 has miserably failecl to prove that she has been bom fi om the wedlock of deceased Asad Hussain and Shamim Akhtar as her own mother has termed and stamped him as an impotent person at the very crucial stage of hr:r life when she had separated her ways from her husband i.e. deceased Asad Hussain, therefore, the evidr:nce available on file surely tilts in favour of respondents/plaintiffs and against the petitic,ner/ defendant. [n the case of "Abdul Rehman & ilhets v/s MsL Allah asgl & others" reported as 1l_022 SCMR 399 the Hon'ble Apex Court has held that in civil dispensation of justice, courts are to ad.judgtl the lis on the standard of preponderance of probability of evidence produced by the parlies v And the decision of the court would tilt in lbvour of the party having preponderance of evidence. A:; for the burden of proving a fact is concerned, it gains imprortance and relevance, only when no r:virlence is led by the concerned party or the Court is untrble l'ahir Saleem (S.8,) Hon'ble Mr. Justice Muhammad ljaz Khan

to take a decision, one way or the other, on the basis of evidence available on record of the case:

20.In this case on crucial issue that petitioner Mst. Mehwish is or not the daughter of Asad Hussain, though the learned trial Court has held that neither respondents/plaintiffs could prove that petitioner is the adopted daughter of A.sad llussain nor petitioner herself could prove that she is the real daughter of Asad Hussain, however" such findings were reversed and corrected by the learned appellate Court by holding that petitioner was an adopted daughter of the deceased Asad Hussain and as such she is/was not his legal heir. It is settled law that in case of inconsistency of the judgment and decree between the appellate Court and the trial Court on any particular issue, the High Court slhall see that as findings of which Court are based on L proper appraisal of evidence and as such after t analyzing and evaluating the evidence on file, the findings of the appellate Court are correct and are the result of proper appreciation of evidence' Irr the case of "Mst, Azru Gulzar v/s Muhammsd FaJ'-oJg.

& enother" reported as 2022 SCMR 1625 it was held by the Apex Court that after conclusion of the '['ahir Saleem (S.8.) Hon'ble Mr. Justice Muhammad Ijaz Khan

trial, the trial Court passed a decree in favour of the petitioner which was challenged by Respondent No.1 in appeal. The appellate Court while allowing the appeal set aside the judgment and decree in favour of the petitioner and dismissed her suit. The findings of appeal were questioned by the petitioner before the High Court by way of civil revision and the learned Judge in chambers upheld the findings of the appellate Court by dismissing the civil revision. We have gone through the findings of the High Court and compelled to observe that the High Court while dismissing the revision petition neither did bother to appraise the entire evidence nor appreciate the points of law. In the case in hand. the is at

such like situation the High Court was supposed to its of

evidence but unfortunately such exercise has not been done by the High Court, The settled law in this regard is that revisional Court in such like situation has to re-appral the entire iust I to ine as to fi ss of which were

on ce

appreciation of law. In the case of "Mu@!

and 4 v- Marun B eDdrt 3 oth ers"

Tahir Saleern (S.8.) Hon'ble Mr..lustice Muhammad ljaz Khan

reported as PLD 1969 SC 617 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, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding. Such a finding by the lower appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first Court which have been disfavoured in the contrary finding. The beins al ance that of trtal,

Judee. the two will lv come for

for ts li

of the facts of the case and the reasgns on which the two ha

If the finding of the first appellate Court cannot be supported on the evidence on record or if it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for V differing from the finding of the trial Court, or is otherwise found to be arbitrary or capricious, it will have to be rejected in second appeal' Our this view is fortified by a long chain of judgments of this Tahir Saleem (S.8.) Hon'ble Mr. Justice Muhammad Ijaz Khan

Court i.e. Alloo v. Sher Khan and others (PLD 1985 SC 382), Abbas Ali Shah and 5 others v.

Ghulum Ali and another (2004 SCMR 1342), Abdul Aziz v. Khuda Dad Khan (2004 scMR 1046), Karim Bakhsh throush L.Rs. and others v.

findwadds Shah and others (2005 SCMR 1518), Muhammud Din und v. Mst. Naimat Bibi and others (2006 SCMR 586), Muhammad Hassun v, Khuwaia. ulil ur Rehman Q007 SCMR 576) and O.8.4. Insurance (International) Ltd. v. Flour and Oil Mills Ltd. (2008 scMR 1037)

21,. In view of the above discussion and exposition of law on the subject, the instant revision petition being bereft of any merit is hereby dismissed.

Announced * t7.07.2023

JUDGE

CM No. 1 1-N2020.

CM No. Al202L.

CM No. 178-4/2023,

MU-HAMMAD-IIAZ .K-HAI{- J. Through these CMs the respondents have prayed to place on Tahir Saleem (S.8,) Hon'ble Mr. Justice Muhammad Ijaz Khan

.h

record certain documents which are essential for a just and fair decision of instant civil revision.

Accordingly, these CMs are allowed and the documents appended therewith shall be treated as part and parcel of the main civil revision.

CM No.268-Al2021.

MUHAMMAD -IJAZ KHAN, I. Since, this Court has finally decided the main civil revision, therefore, the instant CM has become infructuous and as such the same is dismissed.

Announced t7.07.2023 l)

J G

l.ahir Salecnt (S.8.) Hon'ble Mr. Justice Muhammad Ijaz Khan