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Civil Petition for Leave to Appeal No. 111‑R of 1982, decided on 25th October, 1982.

(On appeal from the judgment and order of the Lahore High Court, dated 27‑4‑1982, in R. S. A. 528 of 1972).

Constitution of Pakistan (1973)‑

--Art. 185(3) read with Civil Procedure Code (V of 1908), S. 100 Second appeal‑First appellate judgment one of variance‑Second appeal on facts‑Not barred‑Questions relating to reappraisal of evidence‑Not permissible in leave to appeal proceedings‑Argument as to High Court having not read record correctly when observing evidence having been recorded by trial Court although such evidence recorded on commission‑Evidence assumed to be recorded before Court, notwithstanding lady witnesses having been examined on com mission‑Observation of High Court made in a general sense, vie., main function of entertaining evidence and then appreciating same function of trial Court‑No Justification for interference, held, made out.

Madan Gopal and others v. Maran Bepari and others PLD 1969 SC 617 ref.

Bashir Ahmad Ansari, Advocate Supreme Court and Akhtar Ali, Advocate on-Record for Petitioner.

Maulvi Sirajul Haq Advocate Supreme Court and M.A. Siddiqui Advocate-on-Record for Respondents.

Date of hearing: 25^th October, 1982.

---Leave to appeal has been sought from judgment dated 27-4-1982 of the Lahore High Court; whereby respondents/plaintiffs; second appeal arising out of an inheritance suit, was allowed.

Petitioners/defendants' plea of a will in favour of Muhammad Fazil (first petitioner), against the respondents' claim as daughter and collateral of Fazal Din deceased owner, was rejected by the trial Court. On their first appeal the will was upheld and was given effect to the extent of 1/3 of the property, by the District Court. But on respondents' second appeal a learned Single Judge in the High Court held that the will in question was not genuine.

Learned counsel for the petitioners has contended : that, the second appeal in the circumstances was not competent ; that, the learned Judge in the High Court misread the evidence ; that, it was ignored that the daughters (other than Mst. Nizaran respondent) and widow of Fazal Din supported the will in favour of Muhammad Fazil and this being an act against their own interest should have been given due importance ; that, it was incorrectly assumed in the impugned judgment that the trial Court had itself recorded the evidence‑in reality the lady witnesses on defendants' side were examined on commission and lastly that, the test laid down in Madan Gopal and others v. Maran Bepari and others (P L D 1969 S C 617) was not satisfied by the High Court.

The first appellate judgment was one of variance, therefore, the consi derations bearing a second appeal on facts, against concurrent findings of the Courts below, would not strictly apply to bar the second appeal in the High Court. The rule in case of variance, was laid down by this Court in the case of Madan ‑Gopal which has rightly been relied upon by the learned counsel. The same, however, does not assist him as the impugned judgment does satisfy the test indicated in Madan Gopal's case. Thus there is no force in the first and last arguments of the learned counsel.

Regarding the remaining arguments it would suffice to observe that they essentially relate to reappraisal of evidence for which we find no justification. The instances of so‑called misreading by the High Court, pointed out by the learned counsel are not apt ; as he himself, with respect it has to be observed, did not read the evidence correctly. Similarly the learned Judge in the High Court did not read the record wrongly when observing that the evidence was recorded before the trial Court. This would be so, notwithstanding the fact that in this case the petitioners lady witnesses were examined of commission. The observation by the High Court was in a general sense ; namely, that the main function of entertaining the evidence and then appreciat ing the same is that of the trial Court.

After hearing the learned counsel at length we do not find any justifica tion for interference. This petition accordingly is dismissed.

Petition dismissed.

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