2024 S C M R 1271
[Supreme Court of Pakistan]
Present: Ijaz ul Ahsan, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ
Mst. NAZEERAN and others---Appellants
Versus
ALI BUX and others---Respondents
Civil Appeal No.81-K of 2022, decided on 5th December, 2023.
(Against the judgment dated 02.06.2022 passed by the High Court of Sindh, bench at Sukkur in Civil Revision No.S-42 of 2012).
(a) Evidence---
----Civil proceedings---Burden of proof---Principles and scope---In civil proceedings, an issue is to be decided by preponderance of evidence and in the case where there is a word against a word; it is the party (beneficiary) on whom the burden must fail---Question of the burden of proof becomes material only where the Court finds the evidence so evenly balanced that it can come to no definite conclusion---Where the whole of the evidence is before the Court and it has no difficulty in arriving at a conclusion , it becomes unnecessary to enter upon a discussion of the question of placing of burden on the parties.
Allah Din v. Habib PLD 1982 SC 465; Mst. Surraya Begum and others v. Mst. Susan Begum and others 1992 SCMR 652; Muhammad Amir v. Khan Bahadur and another PLD 1996 SC 267 and Mst. Khatun v. Malla 1974 SCMR 341 ref.
(b) Qanun-e-Shahadat (10 of 1984)---
----Art. 117---Existence of any fact---Burden of proof---Principles---As per Article 117 of the Qanun-e-Shahadat, 1984, when a person is bound to prove the existence of any fact, the burden of proof lies on that person----Said Article is based on the rule, ei incumbit probation qui dicit, non qui negat, which means that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it because a negative is usually incapable of proof---Burden of proving a fact always lies upon the person who asserts and until such burden is discharged, the other party is not required to be called upon to prove his case---Court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden---However, the above rule is subject to the general principle that things admitted need not be proved.
(c) Evidence---
----Burden of proof---'Legal burden' and 'evidential burden'---Distinction---Phrase 'burden of proof' has two meanings - one the burden of proof as a matter of law and pleading, that is 'legal burden' and the other, the burden of establishing a case, that is 'evidential burden'---Former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a party adduces sufficient evidence to raise a presumption in his favour---Thus, the legal burden would always remain on the plaintiffs and the evidential burden would shift to the defendants if they (plaintiffs) discharged their initial burden---Evidence required to shift the evidential burden need not necessarily be direct evidence i.e. oral or documentary evidence or admissions made by the opposite party,it may comprise of circumstantial evidence or presumptions of law or fact.
Raja Khurram Ali Khan and 2 others v. Tayyaba Bibi and another PLD 2020 SC 146 ref.
(d) Qanun-e-Shahadat (10 of 1984)---
----Arts. 85(5) & 129(e)---Registered document---Proof---'Standard of evidence' and 'burden of proof'---Scope---Standard of evidence is not uniform when challenging a registered document as compared to challenging an unregistered document---In disputes relating to registered documents, a common misconception may arise when an executant attempts to dispute the validity of the document through mere denial---Act of registration is not a perfunctory formality but rather a deliberate and legally binding process---When a document is registered, it becomes an official record available to the public---This adds credibility to the authenticity and legal purpose of the transaction---On the other hand, unregistered documents lack the same level of legal endorsement---While they may carry evidentiary weight, their value is inherently lessor as compared to the registered document---Absence of registration renders unregistered documents vulnerable to challenges regarding their authenticity and enforceability---Moreover, a document duly registered by the Registration Authority in accordance with the law becomes a legal document that carries a presumption as to the genuineness and correctness under Articles 85(5) and 129(e) of the Qanun-e-Shahadat, 1984 and which cannot be dispelled by an oral assertion that is insufficient to rebut the said presumption---Mere denial by the executant of a registered sale deed is insufficient to shift the burden onto the beneficiary of the registered document---Executant must establish his assertion of fraud or forgery, etc. by producing some evidence other than his denial to shift the burden onto the beneficiary to prove the valid execution of the registered document---This legal principle reflects the recognition of the high evidentiary value attached to registered documents as compared to unregistered documents.
(e) Fraud---
----Fraud vitiates all actions and no Court can uphold a right on fraud.
(f) Fraud---
----Proof---It is very easy to assert fraud but it is difficult to prove the same----No law provides a special quantum of evidence for the establishment of fraud---While it is true that the Courts should be careful in coming to a finding of fraud and should normally satisfy themselves that the finding is based on reliable evidence, it cannot be said that any special number of witnesses or any special nature of evidence is needed to establish fraud---It is for the Court which is to decide this question to be satisfied that the evidence adduced before it is such that it can believe it---Nonetheless, when a party alleges fraud it becomes its duty to prove the same and generalized allegations or for that matter, mere bald assertions without evidence cannot shift the initial burden.
Ghulam Ghous v. Muhammad Yasin and another 2009 SCMR 70 and Mst. Bhano and another v. Mian A.M. Saeed and others 1969 SCMR 299 ref.
(g) Islamic law---
----Guardian of a minor---Immoveable property---Well-established principle of Muslim Law is that a de facto guardian of a minor has no power to transfer any right to or interest in the immovable property of the minor---Even the principle of estoppel is inapplicable in the case of a minor.
Principles of Muhammadan Law by Mulla, 17th Edition at p.299; Ahmad Khan v. Rasul Shah and others PLD 1975 SC 311; Mehr Manzoor Hussain and others v. Muhammad Nawaz and another 2010 SCMR 1042; Abdul Ghani and others v. Mst. Yasmeen Khan and others 2011 SCMR 837 and Yar Muhammad Khan and others v. Sajjad Abbas and others 2021 SCMR 1401 ref.
(h) Qanun-e-Shahadat (10 of 1984)---
----Art. 84---Trial Court---Power to visually compare signatures on property documents---Scope---Court in certain eventualities, enjoins plenary powers to itself compare the signature along with other relevant material to effectively resolve the main controversy---Thus, a visual comparison of signatures on sale deeds conducted by the trial court is in consonance with the law.
Zar Wali Shah v. Yousaf Ali Shah and 9 others 1992 SCMR 1778; Ahmed Hassan Khan v. Naveed Abbas and another 1998 SCMR 346 and Messrs Waqas Enterprises and others v. Allied Bank of Pakistan and 2 others 1999 SCMR 85 ref.
Mukesh Kumar G. Karara, Advocate Supreme Court for Appellants.
Mirza Sarfaraz Ahmed, Advocate Supreme Court for Respondent Nos. 1-3.
Respondents Nos.4-7: Ex-parte.
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