Mst. AKHTAR SULTANA vs Major Retd — 2021 PLD 715 SUPREME-COURT

Fields are extracted from the reported citation and judgment text. Where a detail is not stated in the record, it is not shown.

Mst. AKHTAR SULTANA VS Major Retd. MUZAFFAR KHAN MALIK arts. 123 & 124---Presumptions as to a person being alive or dead---Principles---article 123 & art. 124 of the Qanun-e-Shahadat, 1984 regulated rules of evidence relating to the presumption of a person, in given circumstances, to be alive or dead---article 123 provided that where a person was shown to have been alive within thirty years, the burden of proof was on the party that sought to prove the contrary; this was subject to art. 124, which provided that the burden of proof shifted on the party that claimed that the person not heard of for seven years was alive---Therefore, the party who asserted that a presumption of death as per art. 124 should not apply, bore the burden of proving the same---article 123 required a party to provide evidence of death, unlike art.124, which raised a presumption of death---article 124 only raised a presumption of death without actually determining the exact date of death which, if required to be proved, would have to be proved by positive evidence. Citation Name: 2021 PLD 715 SUPREME-COURTBookmark this Case Mst. AKHTAR SULTANA VS Major Retd. MUZAFFAR KHAN MALIK S. 54---Sale and gift deed regarding immoveable property---Genuineness and validity---Petitioner-lady claimed that an Attorney of her late husband on the basis of a Power of Attorney, got the impugned sale mutations sanctioned, and also executed the impugned gift deed in her favour---Held, that statements of the two witnesses/Halqa Patwaris, who had entered the initial report of the impugned sale leading to the sanctioning of the disputed mutations, lost credibility when the petitioner/purported vendee failed to prove not only the transfer of possession but also the transfer of sale consideration, which they claim was effected---In fact, the petitioner was unable to satisfy all the courts below about her financial capacity to pay the stated sale consideration---Further, it was an admitted fact that the purported vendor did not appear before the Revenue Officer for sanction of the disputed mutations, rather his purported Attorney relying on an invalid and inadmissible copy of a Power of Attorney, appeared on his behalf---Legal position was much graver in the case of the disputed gift deed, when the essential consideration of a valid gift, that is, the love and affection of purported donor towards his recently divorced wife/purported donee was being conveyed through the same Attorney, and that too without any such authority expressly delegated to him in the disputed Power of Attorney---Thus, when admissibility, proof and evidential value of the disputed Power of Attorney, the very foundation of the disputed mutations and gift deed, was in serious peril, expecting for the superstructure built thereon to withstand the legal challenge would be jurisprudentially naive---Concurrent findings of three courts below as to the invalidity of the sale and gift of the disputed property in favour of the petitioner were correct---Petition for leave to appeal was dismissed and leave was refused. Citation Name: 2021 PLD 715 SUPREME-COURTBookmark this Case Mst. AKHTAR SULTANA VS Major Retd. MUZAFFAR KHAN MALIK arts. 76(f), 85(1)(iii) & 89(5)---Foreign public document---Certified copy---admissibility in evidence---In case, the foreign document fulfilled the essentials of a "Public Document" under sub-clause (iii) of clause (1) of art. 85 of the Qanun-e-Shahadat, 1984 then a certified copy thereof would constitute "secondary evidence" within the contemplation of clause (f) of art. 76---However, special conditions had been prescribed for the certified copy of the foreign public document to be admissible and proof of that document---Said conditions had been prescribed in clause (5) of art. 89 of the Qanun-e-Shahadat, 1984 which in essence were that: first, the certified copy must have been issued by the legal keeper of the document; second, a certificate was to be provided on that certified copy by a notary public or Pakistan Consul/diplomatic agent under his seal to the effect that the copy was duly certified by the officer having the legal custody of the original; and third, the character of the document was proved according to the law of the foreign country. Citation Name: 2021 PLD 715 SUPREME-COURTBookmark this Case Mst. AKHTAR SULTANA VS Major Retd. MUZAFFAR KHAN MALIK arts. 38, 59, 71, 72, 75, 76, 79 & 88---Documentary evidence---Principles of law of evidence as to what material was "relevant"; when it was "admissible"; how it was to be "proved"; and, how its "evidentiary value" was determined stated. Citation Name: 2021 PLD 715 SUPREME-COURTBookmark this Case Mst. AKHTAR SULTANA VS Major Retd. MUZAFFAR KHAN MALIK art. 76---Certified copy of a document---admissibility in evidence---When a party objected to the production of the certified copy of a document, as secondary evidence , the Court had to first consider and resolve the question: whether the loss of the original document had been proved, and if it found it so proved then to move on to examine the intrinsic worth of the secondary evidence produced---Failure on the part of the party tendering such evidence to prove the loss of the original would render the secondary evidence inadmissible. Citation Name: 2021 PLD 715 SUPREME-COURTBookmark this Case Mst. AKHTAR SULTANA VS Major Retd. MUZAFFAR KHAN MALIK O.VII, R. 7---Plaint---Relief not specifically sought in the plaint---Whether such relief could be granted by the Court---Courts were to look at the substance of the plaint not its form, and in appropriate cases the courts could mould the relief within the scope of the provisions of O.VII, R.7, of Civil Procedure Code, 1908 ("C.P.C.")---Courts were empowered to grant such relief as the justice of the case may demand, and for purposes of determining the relief asked for or the relief to which the plaintiff was entitled, the whole of the plaint was to be looked---Provisions of O.VII, R.7 of the C.P.C. empowered the courts to grant an effective or ancillary relief even if it had not been specifically prayed for. Citation Name: 2021 PLD 715 SUPREME-COURTBookmark this Case Mst. AKHTAR SULTANA VS Major Retd. MUZAFFAR KHAN MALIK S. 182---Power of attorney---Interpretation---authority of attorney/ agent---Scope---For a valid Power of attorney, it must expressly provide with particulars, not only the scope and extent of delegated power, but also the subject matter of delegation---attorney could not assert any inherent or implied powers---Power of attorney must clearly set out the purpose for which the same was executed---In cases, where such power was not clear and there was a 'special' and 'general' authority stipulated therein, then the 'general' powers following the 'special' power were to be construed as limited to what was necessary for the proper exercise of 'special' powers---Similarly, where the authority was given to do a particular act followed by general words, the authority was deemed to be restricted to what was necessary for the purpose of doing that particular act. Citation Name: 2021 PLD 715 SUPREME-COURTBookmark this Case Mst. AKHTAR SULTANA VS Major Retd. MUZAFFAR KHAN MALIK arts. 72, 117 & 120---Document---Proof---Producing of document in statement of counsel---Disputed documents could not be tendered in evidence in statement of the counsel for a party, because such procedure deprived the opposing party to test the authenticity of those documents by exercising his right of cross-examination. Citation Name: 2021 PLD 715 SUPREME-COURTBookmark this Case Mst. AKHTAR SULTANA VS Major Retd. MUZAFFAR KHAN MALIK arts.76, 85(2), 85(5) & 88---Registered document---Certified copy---admissibility in evidence---Once the execution of a registered document was disputed, it did not remain a "Public Document" and became a "Private Document"; therefore, any form of its secondary evidence, including its certified copy, could not be produced in evidence to prove its existence, condition or contents without complying with the requirements of art. 76 of the Qanun-e-Shahadat, 1984.

Mst. AKHTAR SULTANA vs Major Retd — 2021 PLD 715 SUPREME-COURT

Case information

Judgment text as reported

Other judgments reported in 2021 PLD