what is a judicial act

8/7/2019 What is a Judicial Act

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What is a Judicial act?

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By munirahmadmughal

A judicial act is an act done by a member of the judicial department of government in construing the law or applying

it to a particular state of facts presented for the determination of the rights of the parties there under; an act done in

furtherance of justice, or a judicial proceedings by a person having the right to exercise judicial authority.

A judicial act must be an act performed by a Court, touching the rights of parties, or property, brought before it by

voluntary appearance, or by the prior action of ministerial officers.

An adjudication of the rights of the parties who in general appear or are brought before the tribunal by notice or

process and on whose claims some decision is rendered.

According to American Encyclopedia a judicial act is the power to decide the rights of person or property in specific

cases.

A judicial act is an act involving the exercise of judicial power.

The distinction between a judicial and a legislative act is well defined. The one determines what the law is, and what

the rights of parties are, with reference to transactions already had; the other prescribes what the law shall be in

future cases arising under it.

The term judicial does not necessarily means acts of a judge or legal tribunal sitting for the determination of matters

of law, but a judicial act may be an act done by competent authority upon a consideration of facts and circumstances

and imposing liability or affecting the rights of others. The authority must exercise some right or duty to decide

before its act can be called judicial. The act of the presiding member of a municipal council in declaring the result of

a poll is a purely ministerial or administrative act___ and not judicial.

A judicial act seems to be an act done by a competent authority upon a consideration of facts and circumstances andimposing liability or affecting the rights of other. Thus it must be that of a person or persons who have legal

authority to determine questions affecting the rights of parties and in a judicial manner.

The duties of the Election Officer certainly fit it with the definition of judicial acts. He has legal authority to decide

on the objection raised by the candidate. The question decided by him effects the rights of the parties and in deciding

the objection raised he hears the parties and may also make an enquiry and therefore has a duty to act judicially.


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A judicial action is usually held to be adjudication upon the rights of parties who, in general, appear or are brought

before Tribunal by notice or process, and upon whose claims some decision or judgment is rendered. Action of a

court upon a cause, by hearing it, and determining what shall be adjudged or decreed between the parties, and with

which is the right of the case.

HOW TO DISTINGUISH BETWEEN ACTSOF A JUDGE AS TO WHICH IS A JUDICIAL ACT AND

WHICH IS A MINISTERIAL ACT?

The acts of justices of the peace may be either judicial or ministerial.

If justices in dealing with a particular matter have to exercise their discretion in arriving at a decision, they are acting

judicially. If on the other had they are merely required to do a particular act and are precluded from entering into the

merits of the matter, they are said to be acting ministerially.

The duty of a Magistrate, for instance, in respect to admitting a person to bail is a judicial act, as it involves inquiries

on which discretion must be exercised.

WHAT IS THE DISTINCTION BETWEEN JUDICIAL AND MINISTERIAL POWERS?

Judicial power has never been held to apply to those cases where judgment is exercised as incident to the execution

of a ministerial power, nor has it ever been held in the exercise of ministerial power by the courts where they have

been compelled to exercise of judicial power.

As ministerial powers are often vested in judicial officers so in a less technical and more liberal sense of the terms, it

seems, ministerial officers or boards are sometime required to exercise judicial or rather quasi judicial powers.

A judicial decision is merely a decision which is in fact exercised by the Courts I accordance with strict legal

procedure, whereas quasi judicial decision is given by an administrator or an administrative Court entitled to follow

it own procedure provided only that rules of natural justice are observed.

Article 129 of the Qanun-e-Shahadat Order, 1984 is relevant to this subject. It reads as under:

1. 129. Court may presume existence of certain facts.

The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to

the common course to natural events, human conduct andpublic andprivate business, in their relation to the facts

of the particular case.

Illustrations


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The Court may presume

(a) that a man who is in possession of stolen good soon after the theft is either the thief or has received the goods

knowing them to be stolen, unless he can account for his possession;

(b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars;

(c) that a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;

(d) that a thing or state of things which has been shown to be in existence within a period shorter than that within

which such things or states of thins usually cease to exist, is still in existence;

(e) that judicial and official acts have been regularly performed;

(f) that the common course of business has been followed in particular cases;

(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person whowithholds it;

(h) that, if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given,

would be unfavourable to him;

(i) that when a document creating an obligation is in the hands of the obliger, the obligation has been discharged.

But the Court shall also have regard to such facts as the following, in considering whether such maxims do or

do not apply to the particular case before it;

as to illustration (a). A shopkeeper has in his till a marked rupee soon after it was stolen, and cannot account

for its possession specifically, but is continually receiving rupees in the course of his business;

as to illustration (b). A, person of the highest character, is tried for causing a mans death by an act ofnegligence in arranging certain machinery, B, a person of equally good character, who also took part in the

arrangement, describes precisely what was done, and admits and explains the common carelessness of A and

himself;

as to illustration (b). A crime is committed by several persons. A, B and C, three of the criminals, are

captured on the shop and kept apart from each other. Each gives an account of the crime implicating D, and the

accounts corroborate each other in such a manner as to render previous concert highly improbable;

as to illustration (c). A, the drawer of a bill of exchange, was a man of business, B, the acceptor, was a young

and ignorant person, completely under As influence;

as to illustration (d). It is proved that a river ran in a certain course five years ago, but it is known that there

have been floods since that time which might change its course;

as to illustration (e). A judicial act, the regularity of which is in question, was performed under exceptional

circumstances;

as to illustration (f). The question is, whether a letter was received. It is shown to have been posted, but the

usual course of the post was interrupted by disturbances;


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as to illustration (g). A man refuses to produce a document which would bear on a contract of small

importance on which he is used, but which might also injure the feelings and reputation of his family;

as to illustration (h). A man refuses to answer a question which he is not compelled by law to answer, but the

answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked;

as to illustration (i). A bond is in possession of the obligor, but the circumstances of the case are such that hemay have stolen it.

[Case Law Study]

1. 00000-Pardanashin lady: Power of attorney on basis whereof sale-deed is executed and registered in

favour of defendant is not produced. Presumption against defendants could legitimately be drawn that had the said

document been produced, same would have gone against defendants. In such context plea of plaintiff that only the

power to manage property is granted to the attorney would assume importance[1]

2. 00000-Specific performance of agreement to sell: Denial of execution of earlier agreement by

subsequent vendee w ould not be much material. Plaintiff to prove execution agreement and receipt of earnest

money had produced marginal witnesses and scribe thereof. Evidence of such witnesses is recorded more than six

years after execution of such documents. Any minor discrepancy not with regard to execution thereof, but onlyregarding situation and the manner in which such witnesses had reached at spot, [2004-MLD-581] RIAZ KHAN

vs. MUHAMMAD AMIR [Lahore]

3. 00000-Statement of Count prepared by Returning Officers and duly signed by them inperformance of their official duty. Presumption of truth is attached to the same, especially when none of the

parties during recounting process could point out single statement of count which is forged, fabricated or tampered

with. Presumption of truth attached to statement of count would thus, remain unrebutted.[2]

4. 00000-Appreciation of evidence. Lady Doctor had opined that the victim baby girl is subjected to

fresh act of sexual intercourse. Chemical Examiner's report had confirmed presence of semen on the "Shalwar" of

accused. Accused according to medical report ispotent and capable of performing act of sexual intercourse. Sisterof the victim girl had given details precisely conforming to the prosecution story which had been supported by other

prosecution witnesses. Blood is noted in front of the door of the house of the accused andblood drops also led to the

room where an attempt had been made to wash the same. All the links in the chain had been proved step by step at

the trial. [3]

5. Accomplice, evidence of Admissibility: Evidence of an accomplice is not admissible in case of anoffence punishable with Hadd and Qisas, but in case of an offence entailing punishment of Tazir his testimony is

admissible furnishing basis for conviction, provided the same is corroborated in material particulars-Testimony of

accomplice may be acted upon as sufficient for warranting recording of conviction in exceptional cases, for the

reasons to be recorded by the Court.[4]

6. Acts done by Government - Presumption of Correctness - Rebuttable: Presumption of correctness

is attached to all acts done by Govt. functionaries, but such presumption is rebuttable.[5]

7. Acts of officials: They are presumed to be correct.[6]

8. Admissibility of National Idemity Card: Presumption of authenticity is attached to National Identity

Card. Original Identity Card produced in a case would be admissible in evidence.[7]

9. Admission of fact Presumption: Where party who is required to deny any fact, had failed to deny the

same, such fact would be deemed to have been admitted.[8]


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10. Adverse Inference: Eye-witnesses being closely related to the deceased required strong corroboration so

as to be relied upon in the case of capital charge, but no such confirmatory evidence is available on record to satisfy

the conscience of the Court. Occurrence had taken place at mid-night outside the house of the deceased where he is

sleeping all alone. Bulb in the light of which eye-witnesses are shown to have seen the occurrence is not taken intocustody by the police and the presence of electricity at that place had been concocted. Despite the presence of

natural witnesses on the spot, they are not produced in support of the occurrence and adverse inference underIllus.(g) to Art. 129 of the Qanun-e-Shahadat, 1984 could easily be drawn that in case they areproduced they wouldnot have supported the prosecution version. Recovery of blood-stained Chhuri having been effectcd after five days

of the occurrence is not a reliable piece of evidence. Credibility of eyewitnesses being not divisible, their testimony

which is not considered safe for conviction of acquitted co-accused could not almost under similar circumstances be

held to be trustworthy to convict the accused. Medical evidence had wholly negated the ocular account. Accused is

acquitted.[9]

11. Adverse presumption: Plaintiff brought suit and claimed inheritance after 78 years of attestation of

mutation of inheritance. Absence of the plaintiff to appear as his own witness in the matter of inheritance to prove

relationship is fatal. High Court drew adverse presumption against the plaintiff.[10]

12. Allegation of transaction being an exchange: Defendant's unwillingness to resolve their dispute on

special oath. Presumption would be that defendants themselves are not sure with regard to correct nature of

transaction and that they are not truthful in their claim that transaction in question, is that of exchange. AppellateCourt's observation that defendants not only turned down offer of special oath but also frankly conceded before it

that transaction in question is in fact sale, must be taken into consideration and given weight to, especially when

same had not been specifically challenged. Even otherwise, evidence on record would lead to irresistible conclusion

that transaction is that of sale and not exchange, and therefore, same is amenable to right of pre-emption.[11]

13. Appeal and review by Provincial Govt - filed in HC through AAG and Additional AG respectively:Filing of such sanction order along with appeal would not be necessary for same being internal business between

Solicitorand Advocate-General. Advocate-General, if filed appeal in pursuance of such sanction he would be

deemed to have performed his official function in accordance with usual course of business. Such filing of appeal is

proper. Principles. [12]

14. Approver: Testimony of approver has to be corroborated in material particulars:[13]

15. Attendance in Court Presumption: Order passed by Court on regular date of hearing when counsel

for parties are in attendance in Court. Order in question ispassed in their presence. Presumption would be that

counsel for defendant had been heard in regard to the plaintiffs prayer in question, which had culminated into order

passed by the Court.[14]

16. Bail, refusal of - Application for: Accused are nominated in FIRand direct allegation is against them

that they snatched cattle on the point of arms after giving blows to nephew of complainant and his son and after

dacoity they are captured alongwith property robbed by them. Prima facie, case against accused could be considered

within meaning of Art. 129 illustration (a) of Qanun-e-Shahadat, 1984. Premature to hold that the culprits are

simply taking away the stolen property. Accused areproduced at the Police Station alongwith their arms and stolen

property. Bail plea of accused could not be sustained.[15]

17. Beneficiary of the transaction is to prove the same as genuine and reasonable: Plaintiff ladychallenged registered exchange deed alleging fraud and contrivance. Suit is decreed by the Trial Court but is

dismissed by the Appellate Court. Beneficiary of the transaction is to prove the same as genuine and reasonable.

Defendant had not appeared personally to prove the terms and conditions of the exchange. Properties exchanged are

of unequal value. Statements made are contradictory. One marginal witness is not produced. Suit is rightly decreed

by the Trial Court. Appellate Court had failed to evaluate the evidence. Judgment and the decree of the Appellate

Court are set aside and that of the Trial Court are restored in circumstances.[16]


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18. Benefit of doubt: Prosecution had not been able to prove its case satisfactorily against accused and there

is no show of misreading and non-reading of evidence on part of Trial Court rendering impugned judgment as

unsustainable. Evidence had been appreciated in right direction and no illegality or infirmity had been pointed out in

the judgment of acquittal. Trial Court had advanced valid and cogent reasons for passing an order of acquittal.Prosecution witnesses alleged to have seen the occurrence and extricated complainant from the hands of accused,

had not been produced at the trial which had made prosecution case doubtful. [17]

19. Best evidence: Evidence which could be produced but is not produced. Presumption. Defendants had not

produced their mother who is alive to disprove the relationship. Defendants withheld the best evidence. Courts

below arejustified to draw inference against defendants.[18]

20. Burden of proof: Presumption to be drawn against the party u/a 129, and application of principle of

Arts.118 & 122 of Oanun-e-Shahadat could only be taken into consideration where a party having full knowledge of

the case, had avoided giving evidence in his own case.[19]

21. Burden to prove in case of illiterate person: Burden to prove document purported to have been

executed by an illiterate person affecting his right or interest in the immovable property is on the person claiming the

right or interest under the document. Onus is on the plaintiff to establish affirmatively that the agreement is

substantially understood by the defendant and it is really his free and intelligent act if he is illiterate. Plaintiff failed

to adduce evidence to establish that the agreement had been read over to him. Trial Court had rightly come to theconclusion that agreement to sell is executed between the plaintiffand defendant in violation of S.16 of ContractAct, 1872. Plaintiff failed to produce his son in Trial Court to prove that agreement to sell is executed by defendant

with his free will as the plaintiff had withheld his best evidence. Plaintiff, in the present case, failed to prove that

agreement to sell is executed without his undue influence and the same is not result of misrepresentation and fraud.

High Court declined to interfere with the finding of Trial Court.[20]

22. Cancellation of registered sale-deed: Plaintiff (husband) alleged such deed is got prepared by defendant

(wife) by producing fictitious person before Sub-Registrar. Plaintiff filed suit more than ten years after execution of

such deed by asserting that he came to know about its execution a week before filing of suit. Plaintiff in support of

his version neither produced sufficient evidence nor attesting witnesses nor scribe of such' deed nor applied for

sending his signature / thumb impression to Handwriting Expert for comparison nor examined any official or called

for record of Sub-Registrar Office. Defendant produced original deed and examined witness, who had witnessed

such deed.[21]

23. Cause of death of deceased disputed: Defendant's version whereby they sought their exoneration

remained unsubstantiated by documentary evidence although they could have produced those documents which are

in their possession. Such evidence having been withheld by defendant without sufficient explanation, legal

presumption would be that had such evidence been produced same would have been unfavourable to it.[22]

24. Commercialization of plot after complying with all necessary formalities: Order of commercialization

could not be challenged after more than 7 years.[23]

25. Controversy regarding existence of allottee: Settlement Authorities, after conducting thorough inquiryfound that person named as allottee, in fact, did not exist and that allotment in his favourand subsequent transfer of

land in question in favour of transferees (petitioners) isbogus and forged one. Petitioners taking plea that allottee

did exist. Such person named as allottee, 'however, never appeared before any Authority or Court. Conclusionsdrawn by Settlement Authorities relating to such matter being official acts, presumption of regularity is attached to

them unless controverted by strong evidence. Conclusions drawn by Settlement Authorities having remained

uncontroverted would hold the filed in circumstances.[24]

26. Conviction - Strong Presumption Value of: Presumption, howsoever strong, cannot be equated with

proofand cannot be made a basis for conviction. [25]


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27. Corruption and corrupt practices - Allegation of accepting illegal gratification - Presumption about

existence of certain facts - Principles - Classes of presumptions - Presumption against the accused in acriminal trial -Onus to prove: Doctrine of res ipsa loquitur being a principle of tort and of civil law is not

applicable to criminal law. Prosecution has to first make out a reasonable case through evidence which satisfies aprudent, reasonable andjust man about the guilt of the accused and it is only then that a presumption shall be raised

against the accused and onus would shift on him.[26]

28. Declaration of title: Certified copy of the order of the Assistant Director Housing and Physical Planning

Department is not produced. Contents of that document are not sought to be proved by secondary evidence.

Allotment is cancelled in 1959. Orders are secured on belated appeal in 1979. Dues are deposited in 1989. Plaintiff

had not appeared in the witness-box. Witnesses had said nothing about ownership. Plaintiff had withheld bestevidence. No infirmity and illegality in the judgments of both the Courts' arepointed out. Petition is dismissed in

circumstances.[27]

29. Default in payment of rent - Burden to prove default: Initial burden to prove default in payment of

rent would be on the landlord, who must assert that default in payment had occurred. Such burden, thereupon, wouldshift on tenant, who would be required-to show, through documentary material, if any, which he alone could be in

possession of, being recipient of receipts of rent, that requisite payments of rents are made. Tenant's evidence is that

he made payments up to specified date, whereafter, due to alleged evasiveness and claim of higher rent, no

payments are entertained. No subsequent receipts of payment of rent, if any, areproduced. Affidavit-in-evidence ofwitnesses claiming payment of rent up to specified date is submitted but such witnesses having not submitted

themselves for cross-examination, affidavits in question, did not constitute evidence. Vital evidence having been

withheld, presumption u/a 129, illust. (g), Qanun-e-Shahadat 1984 would be that if same is tendered, it would have

gone against tenants. Default in payment of rent isproved in circumstances. [28]

30. Default in Payment of Rent - Relationship of landlord and tenant - Dismissal of application forejectment of tenant by Rent Controller: Grounds for dismissal of application for ejectment are want of

relationship of landlord and tenant and non-service of notice in terms of S.18, Sindh Rented Premises Ordinance,

1979. Respondent is admittedly in possession of premises in question and had admitted in written statement that he

is liable to pay rent. Respondent had not claimed ownership of premises in question. Rent is already determined.

Respondent had himself produced order of allotment in favour of original owner who had transferred the same to

petitioner. Respondent was, thus, undoubtedly tenant and would fall within scope of law. Letter of transfer ofownership is sent to respondent through registered post on his correct address, therefore, presumption is attached

thereto that letter in question is delivered to respondent. Relationship of landlord and tenant, thus, stood established

between parties and respondent is liable to pay rent which he had admittedly not paid and had denied relationship of

landlord and tenant in respect of demised premises. Respondent had himself admitted in his cross-examination that

he had not paid rent to appellant, therefore, default stood established on record. Findings of Rent Controller whereby

he had dismissed application for ejectment, being not correct, are set aside. Ejectment of tenant is ordered.[29]

31. Doubtful sale of land did not create any title Doubtful Mutation: Evidence produced by parties

clearly indicated that notwithstanding presumption of regularity attached to official acts within meaning of Art. 129,.

Qanun-e-Shahadat, 1984, recording of statement of deceased (alleged vendor) before Revenue Officeris not at all

free from doubt and transaction of alleged sale on the face of it appeared to be forged and fabricated. Because of

such forgery and fabrication transaction of sale is not acted upon inasmuch as neither plaintiff paid consideration forsale of land in question, noris alleged vendee put in physical possession and occupation of land in question. Suit

brought about 14 years after alleged transaction of sale, for possession thereof, is additional factor against

genuineness of transaction in question. Sale of land in question on basis of mutation was, thus, highly doubtful anddid not create title in favour of plaintiff especially in view of the fact that land in question, is already mortgaged with

the Bank since 1964 and not redeemed.[30]

32. Entries in record of rights as proof of title to immovable property. Entries in Record of Rights arestrong pieces of evidence in support of a person's title to immovable property and ought to be relied upon in absence

of satisfactory evidence in rebuttal produced by opposite party.[31]


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33. Entries in Revenue Record - Presumption: Old transactions recorded in Revenue Record such as

mutations and the entries of those carried into record of rights, if uninterrupted gets initial presumption of

correctness.[32]

34. Entries of Jamabandi: Presumption of correctness is attached to such entries.[33]

35. Entry in report ofForensic Science Expert: Report of Forensic Science Expert showed that in the firstcolumn of the report there is an endorsement of receipt of crime-empties by the constable who had denied receipt ofany such parcel. Presumption of truth is attached to such entries unless the presumption is rebutted, thus, such

entries made in the report could not be disbelieved. Accused neither led any evidence nor challenged the entries

during the trial. In the face of such documentary evidence, the prosecution witness denying receipt of any such

parcel had made a dishonest concession by withholding the fact that he had delivered the parcel to the office of

Forensic Science Expert. Report of Forensic Science Expert corroborated that the empty recovered from the spot is

fired from the gun recovered at the instance of the accused. Finding of conviction upheld by High Court is

unexceptionable and no interference is warranted. No question of law of public importance had been raised. Leave

to appeal is refused.[34]

36. Evidence - Presumption - Judicial record: Presumption judicial record.[35]

37. Evidence in possession of party - Withholding of - Effect: Evidence which is in possession of a partyand is withheld, would-give presumption that had the same been produced before-Court or Tribunal, it would have

been unfavourable to him.[36]

38. Evidence in respect of Talabs by pre-emptor: Pre-emptor being an old lady is within her right to lead

evidence in the Court through her attorney who couia lawfully give evidence on her behalf.[37]

39. Evidence of accomplice - Necessity of corroboration: Illustration (b) of Art 129 is to be read with Art.

16 of the Qanun-e-Shahadat. Conviction can be recorded on the basis of evidence of an accomplice but the Court, as

a rule of prudence, seeks corroboration in material particulars. Exception to the rule.[38]

40. Ex parte decree: Factum of despatch of notices through registered post by Banking Tribunal toappellants is not only borne out by postal receipts on record but is not even disputed by appellants. Appellants had

not claimed that addresses to which notices are despatched through registered post are not their addresses.

Presumption that notices must have reached appellants had arisen both u/s 27, General Clauses Act, 1897 and Art.

129, Qanun-e-Shahadat, 1984. Presumption arising under both enactments is although rebuttable yet appellants had

failed to rebut that presumption by producing cogent evidence. Parties having agreed before Banking Tribunal not to

produce any evidence and to have application decided on basis of affidavits produced by them, appellant's affidavit

stood rebutted by respondent's counter-affidavit leaving nothing on record on basis of which presumption about due

service through registered post could be deemed to have stood rebutted. When notices arepresumed to have reached

appellants, they are obliged to produce sufficient proof to rebut such presumption which they failed to do. Partiesthemselves having agreed not to produce any evidence and to rely upon affidavits filed by them, it did not lie in the

mouth of appellants to raise any objection subsequently that they are not allowed to produce evidence. Indications,

however, existed on record to show that appellants are aware of Court proceedings in the suit most important ofwhich being that one of guarantors of appellants had admittedly received process and had also appeared before

Tribunal. Guarantorandprincipal debtors (appellants) both having been sued, natural reaction of guarantor on

receipt of notice, would be to establish contact with person on whose behalf he had furnished guarantee. Dismissalof application for setting aside ex parte decree is thus for right and valid reasons which did not warrant

interference.[39]

41. Ex parte proceedings against assessee after service of notice - Such proceedings after service of

notice under certificate of posting would be unquestionable when there are seven clear days between hearingof case and despatch of such notice to assessee:Notice under certificate of posting would be presumed to have

been received by assessee in terms of presumption u/a 129, Qanun-e-Shahadat, 1984 and u/s 27 of General Clauses

Act, 1897. Assessment u/s 62, Income Tax Ordinance, 1979 being valid, no interference therein is warranted.[40]


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42. Execution - Presumption: One marginal witness deposed against execution. Other marginal witness is

not produced. Such a situation gave rise to a presumption that had he been produced, he must have deposed against

the execution.[41]

43. Existence of certain facts - Presumption by the Court: Adverse inference when can be drawn. Adverse

inference cannot be drawn against prosecution in every case in term of illustration (g), to Art. 129 of the Qanun-e-

Shahadat, 1984 owing to non-production of certain evidence. Looking to facts and circumstances of each case anadverse inference can only be drawn if it is shown that a material witness or say, documentary evidence has been

withheld owing to some oblique motive and for considerations not supported on the record. [42]

44. Fact asserted by a party - Proof - Withholding of evidence - Adverse resumption: Defendant asserted

that the donor who made the gift is alive. Such donoris not produced as witness. Effect. Non production of the

donor in evidence raised adverse presumption against the defendants.[43]

45. Factual foundation had to be laid on the basis of record / evidence for urging a plea before a Courtor Tribunal: If a person is in possession of a piece of evidence in support of his case, but he did not produce the

same before a Court or Tribunal seized of that person's case, the presumption would be that the evidence not

produced is withheld by the said person for the reason that if produced that could have gone against his version of

the case.[44]

46. Gift - Withhelding of Best Evidence: Defendant had not produced alleged donor (vendor) to prove thattransaction is gift and not sale. Alleged donoris alive ad very much present, but such strong piece of evidence had

been withheld by defendant for reasons best known to him. Article 129(g) of Qanun-e-Shahadat, 1984 provided that

legal presumption would be that in case alleged donor had been produced, his deposition must have been against

defendant. No relationship between alleged donor ad defendant existed, on the basis of which suit property could begifted to defendant. No-misreading or non-reading of evidence or ay material irregularity or illegality or

jurisdictional defect / erroris found in impugned judgment / decree warranting interference. High Court dismissed

revision petition.[45]

47. Grave and sudden provocation: Motive as alleged by the prosecution is not proved. Best evidenceavailable to prosecution had neither been produced before the police nor at the trial. Trial had rightly drawn the

presumption against the prosecution that evidence withheld by the prosecution if produced before the Court would

not have, supported the prosecution. Complainant had made certain material improvements in his statement at thetrial with which he is duly confronted. Murder of the deceased appeared to have taken place much before the arrival

of the eyewitnesses whose evidence had been rightly rejected by the Trial Court. Plea of the accused alone had

remained in the field in the circumstances on which he had been convicted and sentenced by the Trial Court. When

the statement of accused is the only basis, then it had to be taken into consideration as a whole. Accused according

to his statement had seen the deceased and his sister in an objectionable position on which he murdered the

deceased under grave and sudden provocation. Conviction of accused u/s 302, PPC is altered to S.304, Part 1, PPC

in circumstances and he is sentenced to ten years' R.I. with fine thereunder. Appeal is disposed of accordingly.[46]

48. Grounds of detention: Where State security is involved, the Court may be reluctant to exercise

Constitutional jurisdiction even in case of detention if the order is bona fide and is supported by the material on

record though there may be some infirmity in the detention order as to procedure and not as to substance. [47]

49. Imposition of octroi tax in the airport area - Presumption of regularity to official acts - Effect:Airport area is included in the limits of defendant (Municipal Corporation) and defendant had its dominance over

the area. Such area would be subject to all laws and rules applied by the defendant. Notifications for imposition of

octroi tax being official acts; are deemed to have been done regularly unless anything to the contrary isproved.

Goods imported by plaintiffs at the airport were, thus, liable to payment of octroi andNotifications in question, for

imposition of such tax are competently issued.[48]

50. Inference: Witness not produced would give rise to inference that if produced would depose against the

party.[49]


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51. Interim relief, grant of Entitlement Jurisdiction: Documents placed on record showed that Central

BOR (parent department of employee) had no objection to absorption of employee as a permanent employee of

Senate Secretariat and that Central BOR had sent such request to concerned Authority viz. Establishment Division

for according no objection. Such documents prima facie established that employee's absorption as Joint Secretary inGrade-20 in Senate Secretariat is with the consent of Authorities concerned. All official acts arepresumed to have

been performed regularly. Central BOR had given no objection directly to Senate Secretariat and took action forremoval of name of employee from the strength of Officers of Income-tax Group. Such fact would prima facie showthat employee is absorbed in Senate Secretariat with the consent of Competent Authority. Employees of Senate

admittedly do not fall in the category of civil servants in view of provisions contained in Art. 87(3) of the

Constitution. Petition for leave to appeal is converted into appeal and is allowed. Order of status quo earlier granted

by High Court is restored and case is remanded to High Court for disposal of Constitutional petition on merits by

specified time.[50]

52. Interim Relief: Registered sale-deeds having been executed in favour of plaintiffs relating to property in

question, very strong presumption would exist in their favour. Defendant had to rebut such presumption at the trial.

For purpose of grant of interim relief in suit such presumption is further reinforced and strongly supported by the

bulk of documents produced in earlier suit by defendants themselves. Plaintiffs prima facie, appeared to be the

owners of a part of property in question and, thus, entitled to claim interim relief with respect to their ostensible

shares therein.[51]

53. Judicial and official acts - Presumption of regularity - Burden of proof: Provision of Art.129(e)

Qanun-e-Shahadat, 1984, provides presumption of regularity to all such acts and the same is a rebuttable

presumption. Burden of proof to the contrary lies upon the person who challenges such presumption.[52]

Presumption of truth. In absence of legal and valid material on record, legal presumption u/a 129, Qanune-e-

Shahadat, 1984 is that the judicial and official acts have been regularly performed.[53] Presumption of correctness

attaches to all judicial and official proceedings, unless contrary is proved.[54] Presumption of correctness is always

in favour of judicial proceedings. Credibility is attached to proceedings before a judicial forum. Strong and

unimpeachable evidence is required to rebut such presumption.[55]

54. Judicial and official acts Presumption: Judicial and official acts would be presuaied to have been

regularly performed.[56]

55. Judicial proceedings - Setting aside of such proceedings on the basis of affidavits Principles:Proceedings or case events written, recorded and signed during normal course of business by Judges of Courts are

sanctimonious and conclusive unless otherwise proved through irrefutable evidence. Value and status attached to

routine proceedings and orders recorded by a Civil Judge regarding ordinary case events in a trial cannot be lightly

displaced by producing affidavits alleging proceedings to be wrong. Allegations of wrong recording of case eventsinvolve serious and complex ramifications. If the allegations are true, it would vitiate the trial and make the Judge

presiding over the trial, liable to be proceeded against. To disregard or disbelieve proceedings of case events as

wrongly and falsely recorded by a Judge, the Appellate or Revisional Court must have strong evidentiary basis and

profound reasons. Civil Judges and all other Judges of subordinate Courts are as worthy of respect and honour in

discipline of justice administration as those of any higher Court. Orders, judgments, decrees andproceedings of the

Judges of subordinate judiciary are judiciously and legally examined by Courts of appeals, revision or

superintendence. Factual allegations should not be lightly accepted to label the proceedings of Court as wrongly

recorded without taking evidence in an inquiry.[57]

56. Judicial proceedings recorded in open Court by its Presiding Officer - Presumption: Credibility

would be attached to proceedings before a judicial forum. Strong and unimpeachable evidence would be needed to

rebut such presumption. Such proceedings could not be altered on basis of affidavits to the contrary filed by a party

or his counsel. Such course of action, if adopted might lead to a number of complications.[58]

57. Judicial record - Presence of counsel of a party noted on top of judgment - Denial of such fact -Non-filing of affidavit by concerned person Effect: Such contention would lose its significance in absence of

such affidavit. Such affidavit could at best hint at inadvertence on the part of Shorthand Writer / Private Secretary,

who noted order on dictation of Judge but not against the Judge himself.[59]


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58. Last seen evidence alone alongwith the alleged abscondence of the accused is not enough to holdhim guilty: No evidence is available on record to show as to how and under what circumstances and in what

manner the taxi is snatched by the accused and when the taxi driver (deceased) is done to death. Time of death of

the deceased also could not be ascertained as only the bones of the dead body are recovered. Last seen evidencealone alongwith the alleged abscondence of the accused is not enough to hold him guilty. Acquitted co-accused did

not make any confessional statement and their evidence as Court witnesses in the capacity of accused being not anevidence u/a 129, illus. (b) of Qanun-e-Shahadat, 1984 is not reliable u/a 16 thereofand the same, therefore, couldnot be used and read in evidence unless corroborated by independent source. Case of accused being not

distinguishable from that of his said co-accused who had been acquitted as a result of compromise with the legal

heirs of the deceased, his conviction is not sustainable. Accused is acquitted.[60]

59. Leasehold rights in land in question are restored in favour of petitioner in circumstances: Lease of

Govt. land for thirty years. Notification dated 27-3-1973 (as amended by Notification dated 30-4-1981) providedthat such lessee would be entitled to transfer his right under conditions of lease after he had paid lease money.

Original lessee after payment of entire lease amount sold her rights to subsequent lessee. Subsequent lessee sold his

rights in land in question, to petitioner. BOR by issuing suo Motu notice to petitioner, declared transfer in favour of

subsequent lessee to be void and illegal. Petitioner who had got the land through sale-deed by subsequent transferee

challenged such order. Effect. Member, BOR without applying his mind to factum of original allotment had wrongly

decided that original lessee is not entitled to lease. BOR in its order of cancellation of lease had stated that there is

nothing on record to suggest that wide publicity for disposal of land in question is given. BOR apparently did not

apply its mind to facts of case and either it had not properly perused file of case; or in the alternative record

produced before it is not complete and substantial part thereof, is missing. Presumption u/a 129(e), Qanun-e-Shahadat is that every official act is done in accordance with law and on account of mis-statement of fact made by

BOR, it appeared that complete file is not placed before it. Petitioner having acquired vested right in leasehold

rights his lease could not be cancelled for any act of omission or commission on part of his predecessor orDeputy Commissioner who had granted lease in favour of original transferee . Cancellation of lease of petitioner

could only have been considered if he had himself committed any breach of "statement of conditions" as contained

in notification of specified date. Order of cancellation passed by BOR being of no substance is not sustainable.

Impugned order was, thus, declared to be void and illegal. Leasehold rights in land in question are restored in

favour of petitioner in circumstances.[61]

60. Letter posted at the written address: Letter having been sent / posted at the address written thereon,

would be presumed to have been delivered at the address at which it is sent unless addressee proves that same is not

delivered at his address.[62]

61. Locus poenitentiae, principle of: Once land is made, available for allotment and same is transferred, it

ispermanently settled. Same would supersede all the notifications imposing prohibitions. Presumption that acts done

by the statutory functionaries are done in good faith, in lawful mannerand according to law applicable at that time

could not be challenged under the principles of locus poenitentiae. Cancellation of land is without justification.[63]

62. Long uninterrupted possession Gift Presumption: Gift mutation sanctioned in 1970 is challenged

in 1989. Donor lived 10 years after the gift but had not challenged the sane. Long uninterrupted possession of the

defendants raised strongest presumption that they are the rightful owners.[64]

63. Making of Talabs - Notice - Proof of document - Production of evidence becoming available because

of modern devices - Presumptions: Photostat copy of the notice carried the original signatures of the executantand witnesses. Such copy shall be considered as original document. Postal receipt isproduced to prove dispatch of

notice of Talab-e-Ishhad. Receipt is duly proved by witness. Such notice under ordinary course of events shall be

presumed to have reached the destination and distributed.[65]

64. Marriage Proof - Contradictions in statements - Evidence which could be produced but notproduced Effect: Onus to prove that respondent is married with the petitioner before marriage of the petitioner

with respondent / other man is on the respondent. Contradictory statements of the witnesses are not sufficient to

prove genuineness of the Nikah claimed by respondent with the petitioner. Thumb impression on the

"Nikahnama" is not got compared with the admitted thumb impression. Nikahnama is registered with delay of one


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month. Both the Courts below had failed to appreciate the contradictions and other material aspects appearing in the

case.[66]

65. Marriage of the deceased is in exchange of his sister with the brother of the widow: High Court had

taken the correct view that the plaintiffs nowhere averred in their plaint that the widow had been divorced and is

subsequently married to another person, nor it ispleaded that the other defendants are not the sons of the deceased.

Plaintiffs also admitted in evidence that the marriage of the deceased is in exchange of his sister with the brother ofthe widow. High Court recorded findings of fact after thorough scrutiny of evidence of the parties and formed a

correct view. Leave to appeal is refused.[67]

66. Marz-ul-Maut, plea of - Proof: Burden would lie upon plaintiff to prove that deceased is incapacitated

or in the state of "Marz-ul-Maut" at the time of execution of gift deed. Non-entering of donee-defendant in witness

box would not invalidate his case.[68]

67. Mortgage money, re-payment of - Effect: Person in possession andproducing original receipts showing

re-payment of loan. Presumption would be that such payment had been made by person in whose possession original

receipts were, but by such payment, he could not claim any title to the property. Where mortgage debt ispaid by a

third person, there would be no presumption that he is owner of property or had an title therein.[69]

68. Mutation of sale - Proof: After denial of transaction of sale, onus of proving the same would shift tobeneficiary to prove through positive evidence not only mutation, but also transaction incorporated therein i.e. sale,

payment of sale price, transfer of possession and attestation of mutation.[70]

69. Mutation, attestation of - Presumption of truth - Scope: Where owner of land and attesting witness of

sale-deed denied the sale, such mutation would not have any probative value as the presumption stood rebutted in

circumstances.[71]

70. Non-appearance Compromise Presumption - Disputed fact: Non-appearance of the plaintiff

herself during trial would raise a presumption against her as she is the best person to depose about the convening of

'Panchayat' in which compromise is effected and it is in the evidence that she entered into the compromise which

compromise is finally given effect to before the Revenue Authorities. Where the Appellate Court had considered the

entire evidence and had given a finding of fact, High Court declined to interfere with the findings of the First

Appellate Court. Second appeal is dismissed.[72]

71. Non-appearance of plaintiff in witness box - Presumption: When plaintiff did not appear herself in

witness box, the Courts arejustified to take adverse inference against the plaintiff.[73]

72. Non-appearance of respondent and his counsel in response to notices issued to them - Office reportconfirmed issuance of the notices - Effect: Presumption would be that notices had been served upon such persons.

High Court proceeded ex parte against respondent.[74]

73. Nonappearance of respondent and his counsel in response to notices issued to them - Office reportconfirmed issuance of the notices - Effect: Presumption would be that notices had been served upon such persons.

High Court proceeded ex parte against respondent.[75]

74. Non-examination of witness had adversely affected prosecution story: In absence of any evidence that

prosecution witness had seen accused on the day, time andplace of incident, identification test would carry no

weight because same is not corroborating any statement of prosecution witness. Presence of prosecution witness at

the relevant time at place of occurrence is doubtful. Prosecution witness had improved his statement during course

of evidence from his previous statement recorded by police, which had affected his credibility and it was, incircumstances very unsafe to rely upon such witness without any corroborative piece of evidence, which is lacking.

Statement of another prosecution witness which is neither confidence inspiring nor dependable could not be made

basis for conviction of accused. Prosecution had cited three eyewitnesses but only two are examined and third oneis not produced before Trial Court for recording his statement andprosecution did not furnish any reason for not


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examining said witness. Presumption under illustration g of Art.129 of Qanun-e-Shahadat, 1984 could easily be

drawn that had said third witness been examined, he would have not supported prosecution case. Non-examination

of said witness had adversely affected prosecution story. FIR, has a blind one in which no names of culprits are

mentioned. Delay of 24 days, in holding identification test of accused and his custody remaining with police for aconsiderable period under police remand could not be explained by prosecution. Age of prosecution witness is 80

years at the time of recording his statement and it is not possible for said witness to have remembered faces ofculprits after such a long time. Prosecution having failed to prove case against accused beyond any reasonable

doubt, he is entitled to benefit of doubt which is given to him.[76]

75. Non-production / withholding of evidence of vital importance - Inference: Trial Court and First

Appellate Court had rightly drawn inference against respondents on account of non-examination of witness (one ofthe respondents) who being co-sharer had allegedly executed the disputed document on behalf of other co-sharers,

and he could deny execution of such document by stepping in witness-box. In absence of such evidence on record,onus of execution of document in question, by one of the co-sharers, is duly discharged and allegation of appellant

that she paid. specified amount of money on execution of document in question remained unrebutted.[77]

76. Non-production of original degree - Presumption - Failure to cross-examine - Effect: Election

petition is filed against the appellant on the ground that the degree of BA produced by him is fake andbogus

document. Sufficient opportunities areprovided to the appellant for production of evidence which are not availed

for the reasons mentioned on each date. [78]

77. Notice of Talab-i-Ishhad - Proof - With holding of second witness - Presumption: Pre-emptors

neither produced the second witness nor had given any explanation in that regard. Effect. Legal presumption u/a

129(g) of Qanun-e-Shahadat, 1984, would be that in case the second witness had been produced, his deposition

would have been against the pre-emptors.[79]

78. Objection against genuineness of document: Party objecting to such document, not taking steps to get

the same examined by an expert. Presumption would be that party objecting to genuineness of such document would

have failed in getting a favourable report from the expert.[80]

79. Official act: Performance of official act. Presumption.[81] Presumed to be regular unless proved to have

been done irregularly.[82] Presumed to be regular unless proved to have been done irregularly.[83] Public

authorities: It would be presumed to have been regularly performed.[84] Presumption of regularity attaches toofficial acts and documents but such presumption is rebuttable. [85] Official acts are presumed to have been

performed with regularity.[86] Presumption would be that such acts have been properly and regularly

performed.[87] Acts performed by public Authorities deserve due regard by the Courts and every possible

explanation for theirValidity should be explored and the whole gamut of powers in pursuance of which they act or

perform their functions and discharge, their duties should be examined. Presumption of regularity is attached to the

official acts. [88] Although presumption of regularity is attached to official acts and documents yet whengenuineness of documents is doubtful, the Court has power to look into their correctness and Validity.[89] Official

acts on the face of record are presumed to be correctly and regularly performed andpresumption of correctness isalways attached to official acts more particularly to quasi judicial acts.[90] Presumption of correctness and regular

performance is always attached to official acts.[91] Presumption of regularity and correctness would be attached to

orders passed by functionaries.[92] Presumption of regularity is attached to all official acts unless rebutted. [93]

80. Order passed by High Court with consent of parties - Presumption: Strong presumption attached tothe fact that Judges as a matter of rule signed all orders, judgments or decrees on that date which appear in suchorders, judgments or decrees. Such presumption cannot be displaced easily or even by consent of parties. Even if it

be assumed that defendant had not specifically denied allegation of plaintiff, such fact would not displace

presumption that Judge dictated and signed that order on the date which isborne on that order, decree or

judgment.[94]

81. Party not appearing in support of its assertions made in its pleadings Effect Witness - Evidence:Ordinarily party to suit must enter witness-box in order to make statement in support of its pleadings and depose to


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facts exclusively within its knowledge. Contesting parties must undergo test of cross-examination for ascertaining

truth or otherwise of their claims failing which adverse presumption could be drawn against them u/a 129, Qanun-e-

Shahadat, 1984. Where there is sufficient material on record to prove fact in issue, then mere failure of party to enter

witness-box to prove same fact is not fatal to his case.[95]

82. Party not entering witness-box in support of pleading - Effect: Ordinarily party to suit must enter

witness-box in order to make statement in support of its pleadings and depose to facts exclusively within hisknowledge. Where there is sufficient material on record to prove fact in issue, then mere failure of party to enter

witness-box to prove same fact would not be fatal to his case.[96]

83. Performance of official acts - Presumption: Contention of Authorities is that the order procured by civil

servant is manipulated against policy decision of Department and the same isprocured it collaboration with lower

staff. No action is initiated against any dealing official. Effect. Official acts arepresumed to have been correctly

and regularly performed and there is no presumption of manipulation or collusion in the working of a public

Department. Contention of the Authorities is repelled.[97]

84. Personal Knowledge: Where a party abstained from giving evidence in his own case about facts

concerning his personal knowledge, presumption would be that truth lay on the other side. [98]

85. Pleadings are not the evidence in the case: Case has to be decided on the basis of evidence led by theparties in support of the averments made in the pleadings to establish truthfulness thereof. Where defendant (donor)had denied averments made by plaintiff in his plaint, but did not appear as witness to deny such averments on oath,

his non-appearance is very material and adverse inference could safely be raised that he could not deny said fact

and as such his denial in the written statement is of no consequence.[99]

86. Possession of document: Original document of agreement to sell containing the cancellation note is

produced in evidence by the defendant. Plea that document is taken for seeking permission from the G.H.Q. is not

taken in the plaint. Possession of document with the defendant substantiated the case of the defendant.[100]

87. Postal certificate - Default in payment of rent: Landlady or her attorney had not controverted postal

certificate produced by tenant about non-acceptance of rent through money order. Postal certificate is a public

document signed by Govt. functionary, thus, presumption of its correctness could not be doubted.[101]

88. Power of attorney - Allegation that the power of attorney is executed fradulently and throughmisrepresentation - Burden to prove: Burden to prove that power of attorney had been executed fraudulently and

through misrepresentation is upon the person claiming the same to be so. Nothing had been brought on record to

infer that the power of attorney is executed fradulently, rather perusal of the same would show that it is duly

registered with the Registrar. Held, sanctity had to be given to the registered documents, stronger evidence is

required to cast aspersion on its genuineness. Where no such evidence isbrought on record to conclude that the

same is registered fraudulently, document is rightly accepted.[102]

89. Power of attorney: Star piece of evidence being power of attorney, perusal of contents thereof, had to

determine as to whether alleged attorney had the Authority to sell land in question or not, same is not produced in

evidence. Deed of power of attorney being in possession andpower of defendants, failure to produce the same in

evidence would give rise to the presumption that the same if produced in evidence would have gone against versionof defendants, them fore, it could not be deemed that person holding alleged power of attorney is authorised to sell

land in uestion. Findings of two Courts below to the effect that alleged attorney is authorised to sell land in question,

on basis of authority in his favourare incorrect and are reversed in second appeal.[103]

90. Pre-emption - Exchange of 79 Kanals of land with that of 16 Kanals: Evidence led by pre-emptor insupport of such plea is vague and sketchy. Authenticity of exchange could neither be doubted nor treated as sale

merely on conjectural presumptions that 79 Kanals of land could' not have been exchanged with 16 Kanals of land.

Concurrent findings of fact could not be interrupted in absence of any justification. Supreme Court dismissed

petition and refused leave to appeal.[104]


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91. Pre-Emption Third Party Consent Decree Quantum of Proof Statement of Star Witness:Third party during pendency of pre-emption suit, setting up its claim to property in question, in a separate suit

against defendant (vendee) on the ground that in fact he had purchased such land and not the defendant. Defendant

gave consenting statement whereupon suit is decreed in favour of third party by consent decree. Plaintiff (pre-emptor) on coming to know of such decree amended his plaint and made third party a defendant in his Pre-emption

suit and also challenged consent decree in which he had not been made a party. Quantum of proof. Defendant's mostimportant and star witness whom they claimed to be the witness to transaction of sale when appeared in Court as awitness of defendants, refused to make statement on oath relating to transaction in question. Such fact alone issufficient to shatter defendant's case and to establish beyond doubt that defence put up by them against pre-emptive

right of plaintiffis absolutely false and concocted. Plaintiff's right of pre-emption is established on basis of evidence

on record.[105]

92. Presumption as to existence of certain facts - Non production and withholding of related evidenceby prosecution - Drawing of adverse inference by the Court - Principels: Words "evidence" and "person"

occurring in Art.129, Qanun-e-Shahadat, 1984. Connotation. Where both prosecution and the accused had failed to

produce the related evidence, this by itself would not call for an adverse inference against the prosecution. Where,

however, purely trustworthy and transparent oral testimonies had come on record against whom there could be no

allegation of giving false evidence under any sort of motivation, it would not appeal to reason to dram, an adverse

inference against the case of prosecution owing to non-production of the related evidence. Such testimonies, as such,

are not open to question and consequently it would follow that the prosecution succeeded lit proving the existence

of fact.[106]

93. Presumption attached to certificate of Registrar - Effect: Facts stated in certificate of Registrarare

although presumed to have happened, yet such presumption would be rebuttable. Where alleged executant had

denied execution of document, then presumption attached thereto would be deemed to have been sufficiently

rebutted and onus would shift to that person who had alleged execution to prove that document in question is

executed and transaction did take place. Presumption in favour of registered document would not dispense withnecessity of showing that person admitting execution before Registraris not imposter but is the same person who is

mentioned in document as executant. Such evidence having not been produced, document in question, is not proved

to be validly executed.[107]

94. Presumption by Court - Finance Facility: Plaintiff obtained finance facility from defendant-Bank toestablish a spinning unit. Sanction letteris issued by the defendant-Bank, wherein it is agreed that finance facility

would be provided for imported as well as locally manufactured machinery. Plaintiff asserted that defendant-Bank

failed to complete its obligation and due to that the plaintiff had suffered heavy losses. Contention of the plaintiff is

that the Court had to presume that the machinery covered by the two facilities could not be used separately for the

reason that the grant of both the facilities is sanctioned through common document ... ... In absence of some tangible

proof, such presumption would be too far-fetched and the same could not be drawn.[108]

95. Presumption of correctness is attached to every official act done in the discharge of duty: Tenant had

proved through postal record that rent is regularly remitted through money orders. Presumption of correctness is

attached to every official act done in the discharge of duty. Rent Controllerand High Court had concurrently found

that rent is duly tendered by tenant to landlord through its remission by money orderand that he is not a defaulter in

payment of rent. Rent remitted by money order to landlord, albeit on his correct address, would be deemed to be avalid tenderand it had no nexus with the refusal of landlord to accept the same. Responsibility of tenant is only to

remit the rent through money orderand it is not expected of him to follow the postman to its destination. Leave to

appeal is refused.[109]

96. Proceedings recorded by a Judicial Officer, Authority or Forum: They have the presumption of

correctness.[110]

97. Promissory note: Contention of defendant did not appeal to reason as signature looked normal and of the

same person. Execution of promissory note thus is genuine. Judgment and decree passed against defendant is

maintained.[111]


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98. Proof of document required by law to be attested - Attestation by Notary Public:No explanation for

not producing the marginal witness is apparent from the record. Attesting witness andNotary Public who deposed

that the defendant had executed the agreement are not marginal witnesses of the agreement, therefore, they did not

qualify for purpose of giving evidence in view of express provisions of Articles 17 & 79 of the Qanun-e-Shahadat.In absence of any justification for not producing the two marginal witnesses, Court could draw an inference that if

the said witnesses had been produced, they would not have supported the case of the plaintiff. Courts had committedmaterial irregularity in exercise of their jurisdiction. Revision is accepted and concurrent decrees are set aside and

suit of the plaintiffis dismissed.[112]

99. Properly addressed Letter: Letter which isproperly addressed must be deemed to have been received

by the addressee unless proved to the contrary.[113]

100. Public Functionaries: Proceedings conducted by public functionaries and action taken by them would be

presumed to be in accordance with law.[114]

101. Question that the seller of land is a person of unsound mind. Trial Court and Appellate Court had noted

that although sale-deed ispresented for registration on 2nd January, 1964 but it is registered only after 18

th July 1964

when it is re-presentcd. Trial Court had also taken into account interpolation made in the endorsement which is

evident on the face of the document. Written statement showed that medical certificate isproduced by appellants,

before the Sub-Registrar at the time of registration of sale-dced but the said certificate had not been produced but iswithheld by appellants. Courts below, held, arejustified to draw presumption against the appellants.[115]

102. Rebuttal -Onus to prove: Cancellation note on the agreement to sell isproved by the defendant. Fact that

plaintiff had not attempted to have the thumb-impression and signatures compared from the expert negatively

reflected on his case.[116]

103. Record of Rights, entries in: Presumption of correctness would be attached to such entries of Record of

Rights which areproperly maintained by Revenue Authorities.[117]

104. Reference by President to the Tribunal: Reference is to be made by the President and need not be signed

by the President himself. Presumption of regularity as to the official acts.[118]

105. Reference made by the President: Special Court, u/a 129, illus (e), Qanun-e-Shahadat, 1984 can presume

that the reference is made by the President, but has been authenticated by his Secretary in terms of Art. 99 (2) of the

Constitution of Pakistan and is competent.[119]

106. Register maintained by public servant in discharge of his official duty - Entries in the register ofbirth and death - Value - Scope - Date of death - Proof: Copy of such registeris a relevant proof of the date of

death of a person. Entries in the register-of births and deaths were, prima facie, evidence of what is stated, therein.

Death register which is a public document must be accepted as almost conclusive in ordinary circumstances.[120]

107. Register of Record of Rights - Entries made in the Register - Presumption: Register of Record of

Rights being public document has presumption of truth attached to it. Entries made in the Revenue Record have to

be accepted ac true in absence of pursuasive rebuttal.[121]

108. Registered document - Presumption: Presumption of truth is attached to registered document.[122]

109. Registered sale-deed: Where sale deed is a registered document, presumption of truth is attached to the

endorsement thereupon.[123]

110. Res ipsa loquitur, principle of - Applicability - Construction of building in violation of approvedplan: Owners having constructed building in violation of approved plan, their liability must be determined on the

basis of principle "res ipsa loquitur", i.e. things speak for themselves. Article 129, Qanun-e-Shahadat authorises


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Court to presume existence of any fact which in its view, is likely to have happened regard being had to common

course of natural events, human conduct andpublic andprivate business in their relation to facts of particular case.

Plan of building is admittedly approved for hollow plus ground plus one floor. Owners having constructed six floors

with number of blocks had acted in violation of approved plan. Case against owners of building would justify Courtto press into service Art. 129, Qanun-e-Shahadat, 1984 embodying principle of "res ipsa locquitur" giving rise not

only to presumption but impelling circumstantial evidence that owners being beneficiaries are guilty u/s 3, EhtesabAct, 1997. Such accused were, however, in terms of S.17, Ehtesab Act, 1997, given two days time to return gainsvoluntarily. If accused are willing to invoke provision of S. 17, Ehtesab Act, 1997, they would be allowed to work

out gains which had accrued to them and return the same to Authorities; otherwise accused would be sentenced to

undergo rigorous imprisonment for a term of five years and to pay fine amounting to Rupees fifty lacs each or in

default to suffer further rigorous imprisonment for two years.[124]

111. Result sheet is a valid document even in terms of provisions of Qanun-e-Shahadat, 1984: Appointmentof candidates is disputed on the ground that the authorities had not complied with procedure prescribed in Esta Code

under the heading of Recruitment Policy For Federal Service Autonomous Bodies Corporations. Objection is raised

to the procedure adopted by the authorities at the time of interview in viva voce. Authorities clarified before

Supreme Court that viva voce is not subjective in nature but it is objective and the candidates arejudged and

assigned various marks against various sections. Details of the marks given to candidates in viva voce isproduced in

Supreme Court. Matteris remanded to High Court to re-decide Intra-Court Appeal after perusing the original record

of department regarding interview. Effect. Result sheet produced by the authorities is a public document which is

valid in view of Art.150 of the Constitution, therefore, full credit is to be given to the original record. Result sheet is

a valid document even in terms of provisions of Qanun-e-Shahadat, 1984. Judgment passed by High Court, inexercise of Constitutional jurisdiction, is set aside and Division Bench of High Court declined to interfere with the

selection made by the authorities. Intra-Court Appeal is dismissed accordingly.[125]

112. Revisional Jurisdiction, exercise of: Full description of suit property had been given and identity of

property had not been disputed by defendant either before Trial Court or before Appellate Court. Such controversycould not be urged at revisional stage. Defendant could not produce any document to prove his title in suit property

by virtue of inheritance or on basis; of alleged Will. Plaintiff on the contrary had succeeded in establishing her title

in property resting on registered instrument. Presumption as to genuineness, correctness and authenticity of

registered documents under Arts.85(5) & 129(e) of Qanun-e-Shahadat, 1984 is not dispelled by defendant and oralassertion is not sufficient to rebut registered documents produced by plaintiff in proof of her title in respect of suit

property. Suit for possession and declaration is rightly decreed by Trial Court and Appellate Court. Concurrent

findings of Courts below could not be interfered with in Revisional Jurisdiction of High Court when no illegality is

pointed out in concurrent finding of Courts below.[126]

113. Sale of wife's property by husband as her attorney in favour of his real cousin - Denial of sale bywife: Cousin alleging sale in his favour by attorney on payment of price made against a receipt. Non-production of

receipt in evidence. Effect. Withholding of receipt would give rise to presumption adverse to the cousin's case.[127]

114. Service through post: Presumption with regard to service by post generally would be that summons has

duly been served on the addressee by registered post in view of Art. 129(e) of Qanun-e-Shahadat, 1984, read with

S.27 of General Clauses Act, 1897, but such presumption is rebuttable.[128]

115. Statement of accomplice, appreciation of: While it is not illegal to act upon uncorroborated evidence of

an accomplice, it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe toact upon the evidence of an accomplice unless it is corroborated in material respects so as to implicate the

accused.[129]

116. Summons sent in properly addressed and pre-paid envelopes - Presumption: Presumption u/a 129(e),

Qanun-e-Shahadat, 1984 and S.27, General Clauses Act, 1897, would be that summons in question, are duly served

on defendants by registered post. Such presumption although is rebuttable but nothing is wrought on record to rebut

such presumption.[130]


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117. Talab-i-Muwathibat: Legal presumption in the absence of any explanation by pre-emptor as to why the

witness is withheld from examining as his witness would be that in case the witness had been produced, his

deposition must have been against the pre-emptor. Supreme Court declined to interfere with concurrent conclusion

reached by the Appellate Court and High Court.[131]

118. Tender of rent-Official acts: Presumption attaches to official acts, and unless rebutted, they would be

deemed to have been regularly performed. Where andperson had money order receipt and coupon bearing requisitepostal marks indicative of relevant dispatch of money, presumption of tender of rent would follow. [132]

119. Testimony of accomplice - Corroboration: Conviction of an accused in a criminal case can be legally

based solely on the evidence of an accomplice, but on factual plane corroboration of the testimony of accomplice is

required.[133]

120. Title, dispute of - Entries in tax receipts and utility bills rebutted by sale deed - Evidentiary value -Presumption of correctness: Such entries might have presumption of correctness but the same are rebuttable

presumption. Where sale deed isproduced to rebut the entries, showing title of the other co-owners of the executant

the exclusive title of the executant is not proved.[134]

121. Transaction whether sole or exchange - Proof: Mutation of sale is challenged by plaintiff on the ground

that she had entered into transaction of exchange and not that of sale and that mutation of sale is got entered andsanctioned without her knowledge and consent. Plaintiff's thumb-impression, as identified by her son andLambardar of the village areborne on the mutation in question, but neither she nor her son nor Lambardar appeared,

in witness-box to controvert factum of sale and to support assertions in plaint. Presumption would be that had

plaintiff, her son and Lambardar appeared as witnesses, they would not have supported case of plaintiff. Factum of

sale isproved in circumstances. [135]

122. Withdrawal of application for appointment of Local Commissioner - Effect: Inference could be drawnagainst contractor that had local inspection been carried out, report of Local Commissioner would not have been in

his favour.[136]

123. Withholding of Best Evidence Presumption - Principles. Where a best piece of evidence is withheld by

a party despite its availability, it is presumed to have some sinister motives behind it. Even otherwise, a presumption

under illus.(g) of Art. 129 of the Qanun-e-Shahadat, 1984, can fairly be drawn in the matter, against the saidparty.[137]

124. Withholding of Best Evidence - Recovery witnesses had made contradictory statements Benefit ofDoubt: Best piece of evidence of private and independent witness having been withheld by the prosecution without

assigning any cogent reason, presumption under Illus. (g) of Art. 129 of Qanun-e-Shahadat, 1984, could be drawn

against the prosecution making its case doubtful. Out of two packets sealed at the place of incident of the "Charas"

recovered from the accused only one packet is sent to the Chemical Analyser by the Investigating Officer which hadlessened the gravity of the offence andbenefited the accused. Prosecution had failed to prove the case against the

accused beyond any shadow of doubt which had been artificially created by the Investigating Officerand the

Prosecutor. Accused is acquitted on benefit of doubt accordingly. [138]

125. Withholding of best evidence without any plausible reason - Effect: Inference could validly be drawn

against such person u/a 129(g) of Qanun-e-Shahadat, 1984.[139]

126. Withholding of document Effect: When a document is withheld by a party, contention of other party

with regard to contents of that document would have to be accepted as true.[140]

127. Withholding of documentary evidence by the Bank - Effect: Documents which are in the powerandpossession of Bank but had been withheld from the Court, such withholding would give rise to presumption that had

those documents been produced, those would not have supported case of the Bank (defendant). Bank on account of


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withholding best and relevant evidence had failed to prove its defence against plaintiff's claim that he deposited

specified amount in his account and that Bankis responsible in respect of that amount. [141]

128. Withholding of evidence - Effect: Where evidence which could be readily produced by a party, iswithheld without good cause, such evidence, had it been led it should be, presumed to have gone against the party

withholding it.[142] Where there is sufficient material on the record to prove the fact in issue, then mere failure of

the party to enter witness-box to prove same fact is not fatal to his case.[143] Pre-emptor came to know about thesale from and in the house of vendor who is not produced by the pre-emptor as witness. Effect. Non production of

the witness gave rise to an adverse inference against the pre-emptor.[144]

129. Witnesses of Talab-e-Muwathibat, failure to produce them in Trial Court - Effect: Where making of

the demand is alleged to have been made in the presence of witnesses, examination of the said witnesses could not

be dispensed with. Failure to produce the witnesses of Talab-i-Muwathibat would give rise to adverse inference in

terms of Art.129(g) of Qanun-e-Shahadat, 1984.[145]

130. Words "may presume" occurring in Art - 129, Qanun-e-Shahadat, 1984 - Connotation: Expression

"may presume" grants to the Court wide discretion to make or not to make a presumption according to the

circumstances of the case. Principles. Any such presumption is not final but rebuttable. Provisions of Art. 129 of

Qanune-Shahadat, 1984 are discretionary and not mandatory in nature.[146]

131. Worker raising question of forgery committed in the office of Labour Appellate Tribunal while

treating Bank's appeal within limitation: Worker had not raised such question before Labour Appellate Tribunal

but is raising the same first time before High Court. Such allegation of forgery is not a question of law, but question

of fact, therefore, same could not be gone into for the first time in Constitutional petition. Presumption of

correctness, however, is attached to judicial record. Qanun-e-Shahadat (10 of 1984), Art. 129, illus. (e).[147]

[1] [1998-SCMR-96] MUHAMMAD IBRAHIM vs. BASRI [SC]

[2] [1995-CLC-917] QAISAR IFRAHEEM SAROYA vs. RETURNING OFFICER [Lahore]

[3] [2004-PCRLJ-2040] MUHAMMAD ASIF vs. THE STATE [Karachi]

[4] [2000-YLR-994] BAGO vs. THE STATE [Karachi]

[5] [1998-PTD-3923] TRI-STAR INDUSTRIES (PVT.) LTD. vs. THE CIT, C-I, KARACHI [Karachi]

[6] [2005-CLC-1116] INAYAT BEGUM vs. STATE LIFE ICOP [Lahore]

[7] [1995-CLC-1383] ZULFIQAR ALI vs. KAMAL HUSSAIN [Peshawar]

[8] [1998-CLC-1359] MUHAMMAD URIS vs. GOVERNMENT OF SINDH [Karachi ]

[9] [1996-SCMR-308] BASHIR AHMAD vs. STATE [SC]

[10] [2005-YLR-2170] MALKA through L.Hs vs. ALLAH DIWAYA [Lahore]

[11] [PLD-1998-Lahore-165] MUHAMMAD ASLAM vs. MUHAMMAD HAYAT [Lahore]

[12] [PLD-2005-SC-311] LAND ACQUISITION OFFICER and ASSISTANT COMMISSIONER, HYDERABAD vs. GUL MUHAMMAD [SC]


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[13] [1994-SCMR-932] FEDERATION OF PAKISTAN vs. MUHAMMAD SHAFI MUHAMMADI, ADVOCATE [SC]

[14] [1994-CLC-1949] QADIR BAKHSH vs. GHULAM MOCEN-UD-DIN [Lahore]

[15] [2004-PCRLJ-1278] BASHIR etc. vs. THE STATE [Karachi]

[16] [2005-YLR-3089] FATIMA BIBI vs. KANEEZ FATIMA BIBI [Lahore]

[17] [2005-PCRLJ-53] HAMEED-UR-REHMAN vs. SAID REHMAN and 5 others [Peshawar]

[18] [2005-MLD-364] MUNIR AHMAD vs. MUHAMMAD SADDIQUE [Lahore]

[19] [1995-PLC-969] MUHAMMAD ASHRAF KAYANI vs. AZAD GOVERNMENT [SC-AJ&K]

[20] [2002-YLR-2466] IRSHAD AHMED vs. MUHAMMAD RAMZAN [Lahore]

[21] [PLD-2005-Karach i-43] WAZIR KHOSO vs. PROVINCE OF SINDH [Karach i]

[22] [1997-CLC-955] SHAMIM AKHTAR vs. JAVEDAN CEMENT LTD [Karachi]

[23] [1998-MLD-1818] ARDESHIR COWASJEE vs. CLIFTON CANTONMENT BOARD [Karachi]

[24] [1995-CLC-1394] BASHIR-UR-DIN vs. GOVERNMENT OF NWFP [Peshawar]

[25] [PLD-1997-Karach i-281] LAIQ vs. THE STATE [Karachi ]

[26] [PLD-2002-Lahore-369] HAKIM ALI ZARDARI vs. THE STATE [Lahore]

[27] [2005-YLR-2286] FEROZE BEGUM vs. PROVINCE OF PUNJAB through Collector, Khushab [Lahore]

[28] [PLD-1994-Karach i-219] MASOOD AHMAD SIDDIQUI vs. RASHID HASSAN [Karachi]

[29] [1998-MLD-394] HUSSAIN ALI SHAH vs. SHAMSUDDIN [Karachi]

[30] [1996-CLC-1216] ABDUL QADIR vs. GHULAM QADIR [Karachi]

[31] [2002-CLC-1517] MUHAMMAD NAZEEF vs. MUMTAZ BEGUM [Peshawar]

[32] [2005-MLD-153] GHULAM NABI etc. vs. ZAINAB BIBI etc. [Lahore]

[33] [2000-CLC-623] MANZOOR HUSSAIN vs. MUHAMMAD SIDDIQUE [Lahore]

[34] [2005-SCMR-1431] MUHAMMAD YAQOOB vs. State [SC]

[35] [PLD-1993-Lahore-732] NARGIS SHAHEEN vs. FEDERATION OF PAKISTAN [Lahore]

[36] [2000-PLC-905] MOULA BUX vs. GOVERNMENT OF SINDH [Karachi]

[37] [1999-SCMR-2230] MUHAMMAD HANIF vs. MUNAWAR BI [SC]

[38] [1993-SCMR-785] MUNAWAR HUSSAIN ALIAS BOBI vs. STATE [SC]

[39] [1997-CLC-675] WAQAS ENTERPRISES vs. ABP., LAHORE [Lahore]

[40] [1998-PTD-243] MUHAMMAD SADIQ vs. STATE [Karachi]

[41] [2004-YLR-1436] MUHAMMAD LUQMAN ARSHAD vs. GHULAM MUHAMMAD [Lahore]

[42] [PLD-2002-Karach i-152] MIAN MUHAMMAD NAWAZ SHARIF vs. THE STATE [Karachi]

[43] [2002-YLR-2514] MUHAMMAD MUMTAZ vs. ABDUL HAQ [Lahore]


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[44] [2001-CLC-838] MANAGING COMMITTEE, RECHS, RAWALPINDI vs. SECRETARY, COOPERATIVE SOCIETIES, GOPB, LAHORE [Lahore]

[45] [PLD-2003-Peshawar-189] GOHAR SULTAN vs. GUL WARIS KHAN [Peshawar]

[46] [2001-PCRLJ-851] SAFDAR ALI vs. THE STATE [Lahore]

[47] [2004-YLR-1680] KUSH NIAZ vs. FEDERATION OF PAKISTAN [Lahore]

[48] [PLD-1994-Karach i-343] P.I.A CORPN. vs. KARACHI MUNCIPAL CORPN. [Karachi]

[49] [2005-YLR-3089] Mst, FATIMA BIBI vs. KANEEZ FATIMA BIBI [Lahore]

[50] [1995-SCMR-660] SHAHID IQBAL vs. GOVERNMENT OF PAKISTAN [SC]

[51] [1994-CLC-247] MOINUDDIN PARACHA vs. SIRAJUDDIN PARACHA [Karachi]

[52] [1999-YLR-2659] EXCEL BUILDERS vs. K.M.C. [Karachi]

[53] [2001-SCMR-279] ALI ASGHAR vs. CREATORS (BUILDERS) [SC]

[54] [2003-CLC-1652] MUHAMMAD SHAIQ HUSSAIN vs. SAMIR MANZOOR KHOKHAR [Lahore]

[55] [2004-SCMR-964] FAYYAZ HUSSAIN vs. AKBAR HUSSAIN [SC]

[56] [PLD-1994-SC-245] MUHAMMAD ALI vs. HASSAN MUHAMMAD [SC]

[57] [PLD-2004-Lahore-21] MUHAMMAD NAWAZ vs. BARKAT ALI [Lahore]

[58] [2005-CLC-955] ISHTIAQ AHMAD vs. M.H. INDUSTRIES (PVT.) LTD. [Lahore]

[59] [2003-CLD-661] DOHA BANK LTD vs. PANGRIO SUGAR MILLS LTD [Karach i]

[60] [1999-PCRLJ-451] ASAF MANSOOR vs. STATE [Lahore]

[61] [1997-MLD-1847] BASHIR AHMED vs. GOVERNMENT OF SINDH [Karachi]

[62] [1996-SCMR-1230] ANJUM HAYAT MIRZA vs. REHMAT KHAN [SC]

[63] [2004-YLR-1650] PROVINCE OF THE PUNJAB through Collector etc. vs. NAZIR AHMAD [Lahore]

[64] [2005-YLR-2605] RAGHAB HUSSAIN vs. MUZAFFAR HUSSAIN [Lahore]

[65] [2005-YLR-60] SHOUKAT HAYAT vs. LIAQUAT KHAN [Lahore]

[66] [2005-YLR-156] RAZIA BIBI vs. ADDITIONAL DISTRICT JUDGE, BUREWALA [Lahore]

[67] [2003-SCMR-981] ALLAH DITTA vs. AHMAD NAWAZ [SC]

[68] [PLD-2005-Quet ta-127] SHAGUFTA SHIREEN vs. MARIAM BIBI [Quetta]

[69] [2003-MLD-1095] Lt. MUHAMMAD SOHAIL ANJUM KHAN vs. ABDUL RASHEED KHAN [Karachi]

[70] [2004-MLD-706] MUHAMMAD ASLAM vs. ALLAH DITTA [Lahore]

[71] [2002-CLC-88] NOOR MUHAMMAD vs. ABDUL GHANI [Lahore]

[72] [2001-MLD-2007] ALAM BIBI vs. AKBAR ALI [Lahore]

[73] [2005-MLD-646] SAFIA vs. BIBI [Lahore]

[74] [2005-CLD-668] NAZEER AHMAD vs. HBFC, KARACHI through MD [Lahore]


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[75] [PLD-2005-Lahore-228] NAZEER AHMAD vs. HBFC KARACHI through MD [Lahore]

[76] [2005-YLR-954] MUHAMMAD AHMAD vs. THE STATE [Karach i]

[77] [1996-SCMR-137] SUGHRAN BIBI vs. AZIZ BEGUM [SC]

[78] [PLD-2004-SC-452] MUHAMMAD KHAN JUNEJO vs. FIDA HUSSAIN DER