IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
PRESENT: 
MR. JUSTICE MUSHIR ALAM 
MR. JUSTICE DOST MUHAMMAD KHAN  
 
Civil Appeal No.774/2013 
(On appeal from the judgment dated 
16.5.2013 passed by the Lahore High 
Court, Rawalpindi Bench in Civil Revision 
No.100 of 2005) 
 
Phul Peer Shah 
 
 
 
 
 
 
….Appellant  
VERSUS  
Hafeez Fatima 
 
 
 
 
 
 
….Respondent  
 
 
For the appellant: 
 
Syed Qalb-e-Hassan Shah, ASC 
 
 
 
 
 
Syed Rifaqat Hussain Shah, AOR 
 
For the respondents: 
 
Barrister Imran Hassan Ali Ch. ASC 
 
 
 
 
 
Mr. Ahmed Nawaz Ch. AOR 
 
Date of hearing:  
 
19.4.2016 
 
JUDGMENT  
 
  
Dost Muhammad Khan, J.— Through the instant appeal, 
the appellant, Phul Peer Shah has questioned the legality and 
legitimacy of the judgment dated 16.5.2013 passed by the learned 
Single Judge of the Lahore High Court, Rawalpindi Bench, Rawalpindi 
whereby, Revision Petition No.100 of 2005 filed by the respondent, 
Mst. Hafeez Fatima was accepted and her suit was decreed after 
setting aside the judgments & decrees of the Trial Court dated 
1.7.2004 and that of the District Appeal Court/ADJ Chakwal dated 
26.10.2004.  
 
We have heard Syed Qalb-e-Hassan Shah, learned ASC for the 
appellant and Barrister Imran Hassan Ali Chaudhry, learned ASC for 
the respondent and have carefully gone through the record, the 
impugned judgments of the Trial Court and the District Appeal Court 
as well as the evidence on record.  
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2 
2. 
  
The epitome of the controversy is that the appellant 
claimed, having had purchased the suit property measuring 56-K,16-M 
in Patwar Circle ‘Choa Saiden Shah’ for sale consideration of 
Rs.2,60,000/- in presence of the witnesses i.e. DW-4 and DW-5 and 
that, the sale was given the colour of device of “Hiba-bil-Iwaz” to 
avoid of any pre-emption suit by the adjacent owners of the land.  
3. 
  
Admittedly the respondent is a rustic old, illiterate widow 
and of reasonably advanced age. None of the witnesses of the so 
called sale transaction in any manner was acquainted with the lady 
much less related, rather they have close association and attachment 
with the appellant. It is alleged that the respondent lady reported the 
transaction to the ‘Moza Patwari’, who recorded the transaction in the 
‘Patwari Daily Diary’ then mutation No.4021 was entered and it is 
further alleged that the same was attested by the Revenue Officer on 
18.12.1993. In this way, the respondent lady was deprived of her 
entire land which was managed and cultivated by her tenants.  
4. 
  
After getting knowledge of the said event, the respondent 
lady filed a suit on 31.10.1996 wherein she has alleged that naked 
fraud was committed upon her and in a fraudulent manner the land 
was transferred from her name without her consent, knowledge and 
will and without consideration and even if it is assumed to be so, then 
she is entitled to revoke the same. After filing written statements, 
contesting the suit by the appellant, the Trial Court held the trial on 
the wrong issues framed and then dismissed the suit. The same was 
the fate of the appeal filed by the respondent lady as stated above. 
However, the learned Judge in Chamber of the High Court set at 
naught both the judgments and decrees of the two courts below on the 
ground that the same were based on misreading and gross non-
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3 
reading of material evidence and mis and non-application of correct 
law to the established facts, causing serious miscarriage of justice.  
5. 
  
Learned ASC for the appellant vehemently argued at 
considerable length that it is established principle of law that 
concurrent findings of two courts below be considered sacrosanct and 
not amenable to limited revisional jurisdiction of the High Court. He 
urged that no fraud was committed upon the respondent lady and 
because  she has taken two divergent pleas, as in the first instance 
she has denied to have entered into any such transaction but in the 
same breath in paras- 16 and 17 of the plaint she opted to revoke the 
gift even if it is proved and this vacillating conduct of the lady speaks 
volumes about her conduct on account of self clashing pleas taken by 
her and thirdly, the appellant has established his case through 
overwhelming evidence by producing all the witnesses who were 
present at the time of initial transaction and then at the time of 
attestation of mutation, besides the revenue officer of the circle and 
the former ‘patwari’ who had entered the mutation and report in the 
‘Daily Diary’, therefore, there was no occasion for the learned Judge in 
the High Court to interfere with the well reasoned judgments of the 
two courts below based on concurrent findings of facts, reached at 
after proper appraisal and re-appraisal of evidence on record. He also 
relied on the same case laws, which were cited before the learned 
Judge in the High Court during the course of arguments.  
6. 
  
To the contrary, the learned ASC for the respondent lady 
urged with considerable vehemence that no two opinions can be 
formed about the established fact that the poor lady i.e. the 
respondent was having only one mother, who too was old enough, 
aged about 85 years or more. How, the receipt of transaction was 
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obtained from the respondent lady, more so when the description of 
the property i.e. ‘Khasra numbers’, ‘Khata numbers’ the area and even 
the ‘Mozah’ in which it is situated has not been mentioned therein.  
7. 
  
Again, on the basis of unfounded and fallacious plea that 
to ward off right of preemption or filing of any preemption suit by the 
owners of the adjacent property in the mutation the transaction was 
given the colour of Hiba-bil-Iwaz. This by itself speaks volumes 
about the fraud because in S.2(d) of the Punjab Preemption Act, 
1991, sale has been defined as follows:- 
“d. 
 “sale” means permanent transfer of the 
ownership 
of 
an 
immovable 
property 
in 
exchange for a valuable consideration and 
includes transfer of an immovable property by 
way of ‘Hiba bil-Iwaz’ or with ‘Hiba ba shart-ul-
Iwaz’.”  
In view of the above legal provision this plea, taken by the appellant is 
absolutely unsound and is fallacious as it does not stand to reason.  
8. 
 
 In a case of such transaction with old, illiterate/rustic 
village ‘Parda Nasheen’ lady onus to prove the transaction being 
legitimate and free from all suspicions and doubts surrounding it, can 
only be dispelled if the lady divesting herself of a valuable property, 
the following mandatory conditions are complied with and fulfilled 
through transparent manner and through evidence of a high degree. 
Amongst this condition, the pre-dominantly followed are as follows:- 
“(i) 
That the lady was fully cognizant and was aware of 
the nature of the transaction and its probable 
consequences; 
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(ii) 
that she was having independent advice from a 
reliable source/person of trust to fully understand 
the nature of the transaction; 
(iii) 
that witnesses to the transaction are such, who are 
close relatives or fully acquainted with the lady and 
were having no conflict of interest with her;  
(iv) 
that the sale consideration was duly paid and 
received by the lady in the same manner; and 
(v) 
that the very nature of transaction is explained to 
her in the language she understands fully and she 
was apprized of the contents of the deed/receipt, 
as the case may be.” 
9. 
  
The most intriguing part of the so called transaction is that 
the original mutation containing the final order of attestation of the 
mutation by the Circle Revenue Officer was never deposited in the 
central office of ‘Qanoongo’ nor it was received because there was no 
entry made in the register, maintained for that purpose in the Central 
Office of the District or Saddar ‘Qanoon-go’.  Only ‘Partt Patwar” was 
produced at the trial containing no details about the nature of the 
transaction, payment of sale consideration, presence of the witnesses 
attesting the same and also no order of the Revenue Officer of the 
Circle, attesting the mutation was there on the same.  
10. 
  
Under the law of evidence no secondary evidence can be 
led unless it is proved to the satisfaction of the trial Court that the 
original has been lost or destroyed or it was in possession of the 
opposite party and after serving due notice, the opposite party refused 
to produce the same. Without the permission of the Trial Court, this 
secondary evidence i.e. “Partt Patwar” of the mutation was brought on 
record, which is inadmissible and of no help whatsoever to the 
appellant.  
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11. 
  
The Trial Court committed serious illegality by placing the 
onus of proof on the respondent lady with regard to the transaction of 
gift because after clear denial by her and because the appellant was 
the beneficiary of the mutation/transaction, heavy burden of proof was 
on him and the same should have been placed on him instead of the 
poor lady because in a transaction of this nature a mere denial by the 
lady would shift the burden to the male beneficiary of the transaction. 
Framing of wrong issues and shifting of onus of proof to the lady 
landed the trial Court and the District Appeal Court in a field of 
illegalities and why they have drawn wrong conclusions therefrom.  
12. 
  
It is century old principle of law, which is old as hills are, 
that mutation by itself is not sufficient to prove the transaction but it 
must be independently proved through cogent, reliable and convincing 
evidence and more stringently in the case of illiterate ‘Parda Nasheen’ 
lady.  
13. 
  
In our male dominated society where the female legal 
heirs are consistently deprived even of their ‘Sharai’ shares in 
inheritance matters like sisters and mother, the principle of caution in 
protecting the legitimate rights of the illiterate/rustic village lady, must 
be applied vigorously and rigidly.  
14. 
  
In the instant case, the respondent, an old lady, was 
having only one aged mother, who was dependent upon her and was 
having no male blood relative to give proper advice, protecting her 
rights at the time of the disputed transaction thus, she was vulnerable 
and fully exposed to any fraud because the appellant was a distant 
collateral who exploiting the ignorance of a defenceless lady, 
conveniently deceived her under self assumed and ill conceived design 
CA 774/13 
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that she would not be able to bring a law suit against him thus, 
managed all the things in quick succession and then with his 
connivance the revenue staff destroyed the original mutation because 
the respondent has clearly denied that she had appeared before the 
Revenue Officer at the time of attestation of the questioned mutation. 
This was the only transaction in the ‘Patwar Circle’ of which the 
original mutation was intriguingly missing as no evidence has been 
brought on record that any other mutation relating to other transaction 
in this Circle also went missing like the present one thus, the only 
inference would be that it was deliberately destroyed so to cause 
disappearance of evidence because in case the original mutation was 
brought on record then, the question of identification of thumb 
impression through fingerprints expert would have become essential 
and in that case no one else but the appellant would have been the 
loser.  
15. 
  
Even the witnesses produced, have given conflicting 
statements about the place and time of the transaction. Who was the 
scribe of the receipt obtained from the lady, is another begging 
question, looks askance for which the appellant has no reply, much 
less plausible to give.  
16. 
  
This Court in the case of Ghulam Ali vs. Mst. Ghulam 
Sarwar Naqvi (PLD 1990 SC 1), after taking judicial notice of the 
plight of the females in a male dominated society has laid down 
comprehensive guidelines for all Courts and authorities to follow in 
such cases. So much so that even the hopelessly time barred suits 
were decreed and it was held that the females in our society are 
neither supposed nor they are given any role, much less a decisive one 
to play in the management and receiving the benefits from the 
CA 774/13 
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property in which they become co-sharers but the male members of 
the family dominate the entire affairs to maintain, manage or to 
dispose of such properties.  
17. 
  
The evidence furnished by the appellant is not upto the 
required standard, rather it is replete with infirmities, both factual and 
legal and because the witnesses have given conflicting statements 
therefore, the impugned transaction with the respondent lady can be 
safely held to be the result of fraud and deception, practiced upon her 
exploiting her defenceless and illiterate status.  
18. 
  
For the foregoing reasons, we are of the considered view 
that the learned Judge of the High Court was absolutely justified in 
setting at naught the judgments and the decrees of the two Courts 
below, which in our view too, were based on gross misreading and 
non- reading of material evidence and also on wrong application of 
principle of law. The required care and caution was not observed while 
making appraisal of evidence and legal aspects of the case therefore, 
the concurrent findings were clearly amenable to the revisional 
jurisdiction of the High Court because gross illegalities were committed 
in the course of trial and appeal proceedings due to the above reasons.  
 
Accordingly, this appeal is found devoid of legal merits and is 
dismissed with costs throughout.  
Judge  
 
Judge  
 
Islamabad, the  
19th April, 2016 
‘Nisar/- 
‘Approved for reporting’