2023 C L C 920
[Balochistan]
Before Gul Hassan Tareen, J
MADO KHAN---- Petitioner
Versus
TALIB JAN and another ----Respondents
Civil Revision No.298 of 2021, decided on 5th December, 2022.
Qanun -e-Shahadat (10 of 1984) ---
----Arts. 57 & 114--- Suit for recovery of money---Fact in issue / relevant fact ---Estoppel,
principle of ---Applicability ---Order by Criminal Court ---Petitioner / Plaintiff sought
recovery of damages and exile of respondents / defendants from village ---Tria l Court on the
basis of an order passed by Criminal Court in the criminal proceedings against respondents /
defendants for same set of facts dismissed the suit ---Appeal filed by petitioner / plaintiff was
also dismissed by Lower Appellate Court ---Validity ---Institution of suit by petitioner /
plaintiff meant that he made a false statement before Criminal Court regarding forgiveness of respondents/defendants in the name of Almighty Allah---In civil suit, statement recorded by petitioner / plaintiff before Cr iminal Court was binding upon him under Art.114 of Qanun- e-
Shahadat, 1984--- Suit of petitioner / plaintiff was barred by estoppel ---Presumption of
genuineness was attached to statement of petitioner / plaintiff recorded by him before Criminal Court that he had forgiven respondents/ defendants without any monetary
consideration --- Petitioner failed to rebut such mandatory presumption of law and fact ---Suit
instituted by petitioner was rightly dismissed by two Courts below, as order passed by Criminal Court w as relevant in a civil case--- Any judgment, order or decree which is a fact
in issue or is relevant under some other provision of Qanun- e-Shahadat, 1984, was relevant
in any other civil or criminal case under Art. 57 of Qanun- e-Shahadat, 1984---High court
declined to interfere in concurrent findings of facts by two courts below as the same did not suffer from any illegality---Revision was dismissed, in circumstances.
Mrs. Nimmi Francis and 5 others v. Muhammad Saeed Qureshi and another 1982
CLC 1703 disti nguished.
Rehmat Ali Ismailia v. Khalid Mehmood 2004 SCMR 361 and Abdur Rehman v.
Hamid Khan 1988 SCMR 1146 rel.
Mehboob Alam Mandokhail for Petitioner.
Amanullah Jaffar for Respondent.
Date of hearing: 29th November, 2022.
JUDGMENT
GUL HASSAN TAREEN, J.----The instant civil revision petition has been filed by
the petitioner, under section 115, the Civil Procedure Code, 1908 ("the Code"), from the
judgments and decrees passed by the Courts of, Civil Judge, Kingri ("Trial Court") and District Judge, Mu sakhail ("Appellate Court"), on 11th December, 2020 and 26th March,
2021 respectively, ("impugned judgments and decrees"), whereby suit instituted by the petitioner for recovery of Rs. 300,000/ - and exile of respondents from the area of Kingri, was
concurr ently dismissed.
2. Mr. Mehboob Alam Mandokhail, counsel for the petitioner, states that the petitioner
had forgiven the respondents at a criminal trial on the basis of an Arbitration Award dated
29th August, 2018, however, they failed to pay installments fixed by the said arbitration
award. He states that, though, before the Court of Judicial Magistrate, Kingri, the petitioner
had forgiven the respondents in the name of Almighty Allah, however, the admission made in the criminal case was not relevant in th e subsequent civil suit. He placed reliance on the
case of Mrs. Nimmi Francis and 5 others v. Muhammad Saeed Qureshi and another, (1982 CLC 1703). Mr. Amanullah Jaffar, counsel for the respondents, states that the arbitration award is void under Article 15 , the Constitution of the Islamic Republic of Pakistan, 1973
("the Constitution"). He also states that the petitioner appeared before the Court of Judicial Magistrate, Kingri and his statement was recorded as CW -1. In his statement, the petitioner
had deposed that he has forgiven the respondents in the name of Allah. Finally, he requests for dismissal of the revision petition.
3. I have heard arguments and have gone through the record of the case which reveals
that the petitioner lodged FIR No. 01/2018 agai nst the respondents under section 337- ADF
read with section 34, the Pakistan Penal Code, 1860. After formal investigation, the report was submitted by the Investigating Officer before the Court of Judicial Magistrate, Kingri ("the Court"). On 24th November , 2018, the petitioner appeared before the Court and made
an application under section 345, the Criminal Procedure Code, 1898 ("Cr.P.C"), for acceptance of compromise deed. The Court recorded statement of the petitioner as CW -1.
The petitioner had deposed that he has compounded the offence and forgiven the respondents
in the name of Allah Almighty, . The Court accepted the application and the
respondents were acquitted of the charge. According to the averments of the petitioner in
civil suit, after lodgmen t of the FIR, the notables were appointed as arbitrators whom made
an arbitration award, whereby the respondents were directed, to pay Rs.400,000/ - as
compensation for injuries caused by them to the petitioner and, to leave the area of Kingri forever. The petitioner averred that the respondents paid Rs. 100,000/ - to the petitioner
while, the balance Rs.300,000/ - was to be paid on every Eid -ul-Azha, in three equal
installments, which they failed.
4. The respondents submitted written statement and denied exis tence of the arbitration
award as well as payment of Rs. 100,000/ - to the petitioner. On such pleadings, the Trial
Court framed issues and after recording evidence, dismissed the suit. The appeal filed by the
petitioner met with the same fate. The question s to be addressed in the instant civil revision
petition would be:
i. whether civil suit instituted by the petitioner was not barred by Estoppel? and
ii. whether the order of a criminal Court is relevant in a civil suit?
5. The petitioner lodged FIR against the respondents and after formal investigation,
challan was sent to the Court. After lodgment of the FIR, notables intervened and made an
Arbitration Award dated 29th August, 2018, whereby the respondents were directed to pay Rs. 400,000/ - to the p etitioner on account of compensation, for injuries caused to the
petitioner. Respondents were also directed to leave the area of Kingri after five months of the arbitration award. On 29th August, 2018, the petitioner made an application to the Court, accom panied by a compromise deed, under section 345, Cr.P.C. The relevant from the
application is extracted here- in-below:
On 24th November, 2018, the petitioner appeared on oath as CW -1 before the Court
and deposed that he has forgiven the respondents in the name of Almighty Allah without any compensation. The Court believed the statement of the petitioner true. Later, the learned Presiding Officer of the Court acted upon such statement and granted his application under section 345, Cr.P.C and on 24th November, 2018, the respondents were acquitted of the
charge. The petitioner had not mentioned before the Court that either he has entered into an arbitration with the respondents or the arbitrators have made an arbitration award. The institution of suit means that the petitioner had made a false statement before the said Court regarding forgiveness of the respondents in the name of Almighty Allah. In the civil suit, the statement recorded by the petitioner before the Court was binding on the petitioner under Article 114, the Qanun -e-Shahadat Order 10, 1984 ("Q.S.O"). Therefore, the suit of the
petitioner was barred by Estoppel.
6. A strong mandatory presumption of genuineness and sanctity is attached to a
document purporting to be a record or memorandum of the ev idence or of any part of the
evidence given by a witness in a judicial proceeding. In this regard, Articles 91 and 129, the Q.S.O are relevant which are hereunder reproduced.
"91. Presumption as to documents produced as record of evidence.- Whenever any
document is produced before any Court, purporting to be a record or memorandum of
the evidence, or of any part of the evidence given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be a statement or confession by any prisoner or accused person taken in accordance with law and purporting to be signed by any Judge or Magistrate or by any such officer as aforesaid, the Court shall presume: -
that the document is genuine; that any statement as to the circ umstances under which
it was taken, purporting to be made by the person signing it, are true, and that such
evidence, statement or confession was duly taken.
129(e): that judicial and official acts have been regularly performed."
Articles 91 and 129(e) of the Q.S.O are based on the maxim, "Omnia Praesumuntur
rite esse acta", which means that "all things are presumed to have been done rightly."
According to Article 2(8), the Q.S.O, a fact, presumed to be true, does not require
formal proof. Article 2(8) reads"
"Whenever it is directed by this Order that the Court shall presume a fact, it shall regard such fact as proved, unless and until it disproved."
Apart from the afore -referred provisions of law, Article 150, the Constitution, is
relevant which reads:
"150. Full faith and credit for public acts, etc: - Full faith and credit shall be given
throughout Pakistan to public acts and records and judicial proceedings of every Province."
Reliance is placed on the case of Rehmat Ali Ismailia v. Khalid Mehmood, reported
in 2004 SCMR 361.
The presumption of genuineness is attached to the statement of the petitioner recorded
by him before the Court, that he has forgiven the respondents without any monetary
consideration. The petitioner has failed t o rebut the afore -referred mandatory presumption of
law and fact; therefore, suit instituted by the petitioner has rightly been dismissed by the two courts below.
7. The order passed by the Court is relevant in a civil case. Any judgment, order or
decree w hich is, a fact in issue or is relevant under some other provisions of Q.S.O, is
relevant in any other civil or criminal case, under Article 57, the Q.S.O, which reads:
"57. Judgments, etc; other than those mentioned in Articles 54 to 56, when relevant. Judgments, orders or decrees, other than those mentioned in Articles 54, 55 and 56,
are irrelevant, unless the existence of such judgment, order or decree is a fact in issue or is relevant under some other provision of this Order."
In the civil suit of the petitioner, the fact in issue is "whether respondents are liable to
pay Rs. 300,000/ - to the petitioner on the basis of arbitration award dated 29th August,
2018". The existence of the order of acquittal of the respondents dated 24th November, 2018 passed by the Court, is a fact in issue, in the civil suit, as the petitioner in the said case
deposed that he has forgiven the respondents in the name of Allah Almighty. Therefore, the existence of the acquittal order has proved that the respondents were forgive n
unconditionally. Hence, the order of the Court proves, non- existence of the fact in issue in
the civil suit.
8. The petitioner has also claimed in the civil suit that in pursuance of the conditions of
the arbitration award, the respondents may perpetuall y be exiled from the area of Kingri. The
Trial Court has rightly referred to Article 15, the Constitution, which reads:
"Every citizen shall have the right to remain, and, subject to any reasonable restriction
imposed by law in public interest, enter and move freely throughout Pakistan and to
reside and settle in any part thereof."
The arbitration award to such extent is void under Article 15, the Constitution.
9. The petitioner has failed to prove that the arbitration award was partly acted upon by
the r espondents by payment of Rs.100,000/ - to the petitioner. Therefore, civil suit for
enforcement of an arbitration award is barred by section 32, the Arbitration Act, 1940. The Hon'ble apex Court in the case of Abdur Rehman v. Hamid Khan (1988 SCMR 1146) has
held as under:
"Apart from this, the High Court, in our opinion, has even otherwise completely misconceived the entire situation. The respondent was throughout basing his case on the fact that the document dated 16- 10-1967 was an award and as the appellant was
now resiling from it, it should be enforced. Merely because the document dated 16-10-1967 shows that it was founded on the agreement of the parties and was signed by
both of them did not ipso facto make it an "agreement for sale" because Qazi Mian
Abdul Haque, to whom this dispute was referred, was required to give a sharri faisla in respect of it. The document he produced was also described by him as an award and in the note appended by him at the bottom of the said document he directed one of the parties i.e. respondent to pay Rs. 700 to the appellant at the time of the
mutation, which direction was no based on the statement of the parties before him, which have been noted in the document dated 16- 10-1967 (Exh.P.W.2/1). These
circumstances al so show that the said document was an award made by Qazi Mian
Abdul Haque and not an agreement entered into by the parties. The fact that the suit filed by the respondent too was for enforcement of the award indicates that the suit filed by him was no for the specific performance of any agreement but was for the enforcement of an award. But as the validity of this was being challenged by the appellant, the suit was not competent being barred by the provisions of section 32 of the Arbitration Act. "
10. The impugned judgments are well reasoned and do not suffer from any illegality. The
case law cited by the petitioner's counsel is not relevant.
For the foregoing discussion, the revision petition is dismissed.
MH/12/Bal. Revision Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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