IN THE SUPREME COURT OF PAKISTAN  
(Appellate Jurisdiction) 
 
 
 
 
PRESENT: 
MR. JUSTICE DOST MUHAMMAD KHAN  
MR. JUSTICE MANZOOR AHMAD MALIK 
 
 
Civil Appeal No.525 of 2013 
(On appeal from the judgment dated 
15.04.2013 passed by the Peshawar 
High Court, Abbottabad Bench in C.R. 
No.315 of 2005) 
 
 
Ghulam Farid and another 
…Appellant  
VERSUS  
Sher Rehman (decd.) through his LRs. 
..Respondents  
 
For the appellants: 
Mr. Nazakat Baig, ASC 
 
 
 
 
Syed Rifaqat Hussain Shah, AOR 
 
For  the respondent: 
Mr. Muhammad Afzal Janjua, ASC 
 
Date of hearing:  
27.1.2016 
 
 
 
 
  
JUDGMENT  
 
 
  
Dost Muhammad Khan, J.—  Through this appeal, the 
appellants have impugned the judgment and decree of the learned 
Single Judge of the Peshawar High Court, Bench at Abbottabad dated 
15.04.2003, who reversed the judgment and decree of the District 
Appeal Court, Haripur dated 07.05.2005 and restored the judgment 
and decree of the Civil Judge, Haripur, who had dismissed the suit of 
the appellants. 
  
We have heard the learned ASC for the appellants and learned 
ASC for the respondent and have carefully gone through the record.  
2. 
  
The epitomestic history of the controversy is that, the 
appellants including two illiterate ladies are stated to have transferred 
the suit land, consisting of different “Khataz” and “Khasras” number, 
through disputed mutation No.44, allegedly attested on 07.06.1969. 
The case of the appellants is that, they were neither present nor were 
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2 
having knowledge of the mutation because appellants including 
Ghulam Farid were living in Sindh Province and after coming back to 
the village, when he demanded the share of produce, the defendant 
refused to pay the same, rather claimed that he had already 
purchased the suit property through the above mutation thus, paddling 
up the appellants to file the suit for decree of declaration, possession 
and permanent injunction.  
  
The 
respondent, 
namely 
Sher 
Rehman 
(deceased), 
now 
represented by LRs., filed written statement and contested the suit.  
3. 
  
After holding trial, the learned Trial Judge dismissed the 
suit mainly on the point of limitation, however, the learned Additional 
District Judge, Haripur reversed the findings of the Trial Court and 
after setting aside the judgment & decree so passed, decreed the suit 
in favour of the appellants for cogent reasons, attending to each and 
every material aspect and also the issue of limitation.  
4. 
  
The learned Single Judge in the High Court, in revisional 
jurisdiction set aside the judgment & decree of the learned Additional 
District Judge on the issue of limitation alone and further held that the 
attestation of mutation in another “Mauza”, other than where the suit 
property situates, was not an illegality while placing reliance on the 
view held by this Court.  
5. 
  
The learned Judge further relied on the view taken in the 
case of LAL KHAN v. Muhammad Yousaf (PLD 2011 SC 657) 
however, the reliance placed on this judgment is entirely misconceived 
one because the view held in the said case supports the case of the 
appellants.  
6. 
  
It is a century old principle of law that mutation entry and 
its attestation is not a document of title and the transaction of sale 
CA 525/13 
3 
must be proved independently through cogent evidence where passing 
of sale consideration to the vendors is fully established. This principle 
shall apply more stringently without any pause and stop where such 
transaction is between the male beneficiary/purchaser and “Parda 
Nasheen lady” as in this case two of the plaintiffs were ladies.  
7. 
  
The plea of appellant No.1 that, he had gone to Sindh 
Province for earning livelihood before the year 1961-62, was not 
seriously challenged by the defendant in the course of cross-
examination. This plea is amply supported by the statement of 
Shahzada (PW-4), admitting that he was appointed as a caretaker by 
appellant No.1, of the suit property through a letter, which the 
appellant had sent to him from Sindh Province and that, the land was 
given on rent/tenancy basis to the defendant who had paid the share 
of produce to him in the first instance. He further stated that at the 
time of attestation of the disputed mutation, Ghulam Farid appellant 
was not in the village being away to Sindh Province.  
8. 
  
The contention of appellant No.1 is further supported by 
Dilshad Khan (PW-5) who stated that he was retired from the Sindh 
Police after serving there for 30/40 years and; that at the time of 
attestation of the impugned mutation, the appellant and his mother 
were residing with him because plaintiff No.2, Mst. Afroz Begum was 
his wife. Both the statements of above PWs were not challenged by the 
defendant during cross-examination. The suit was filed on 21.11.2001 
when appellant No.1 returned from Sindh Province to his village and 
defendant claimed hostile title to the suit and possession over it. On 
verification of the revenue record, appellant No.1 came to know about 
the attestation of the impugned mutation No.44 dated 07.06.1969.  
CA 525/13 
4 
9. 
  
Under the law and principle of justice, when mutation is 
never held to be a document of title and when a negligible 
presumption is attached to it, provided it is proved fairly and its entry 
and attestation is conducted in the laid down manner, the mere 
incorporation of it into the “Jama Bandi” and its repetition 
periodically, would not confer title on the purchaser unless the 
transaction of sale is independently established, through cogent and 
convincing evidence. In the case of transaction with illiterate village 
lady this principle assumes the status of rule of law as in that case the 
onus of the beneficiary of it becomes manifold. To discharge the 
burden of proof he has to satisfy the court of law that the entire 
transaction was completed in a transparent manner and all the 
required precautions were faithfully and honestly observed before the 
attestation of mutation, dispelling every suspicion that it was tainted 
with fraud and misrepresentation.  
10. 
  
In the present case, it is admitted fact that none of the 
vendors have thumb impressed the disputed mutation as has been 
stated by Malik Muhammad Taj, Halqa Patwari (PW-1) and Shakeel 
Ahmad, Qanoon-go (PW-2). Even the daily diary, maintained by the 
‘Patwari’ was not produced as it was destroyed after 12 years 
however, the defendant did not obtain a certified copy of the same, 
while u/s. 42 of the West Pakistan Land Revenue Act, 1967 it is 
essentially provided to the informer. 
11. 
  
Neither the two attesting witnesses to the mutation, 
namely,(i) Muhammad Asif Khan and (ii) Malik Mir Haider Zaman, 
Lambardar, nor the then Halqa Patwari who made entries in the daily 
diary, 
were 
produced 
to 
substantiate 
the 
claim 
of 
the 
defendant/purchaser. Even the Revenue Officer, who attested the 
mutation, was not produced.  
CA 525/13 
5 
12. 
  
To avoid the commission of fraud, misrepresentation or 
foul play, the provision of sub-s.(8) of S.42 of the Act, has made it 
mandatory that an inquiry under sub-s.(6) of the said provision shall 
be made and the mutation, the subject matter, should be attested in 
the common assembly in the estate to which the mutation relates. In 
this case, admittedly the mutation was attested entirely in a different 
“Mouza” situated 3/4 miles away from the “Mouza” where the 
property situates. The maxim, “Expressio Unis Est Exclusio 
Alterius”  commanding that when law requires that a thing be done in 
particular manner then, it should be done in that manner as anything 
done in conflict of the command of law shall be unlawful being 
prohibited.  
13. 
  
As discussed in the earlier para of this judgment that 
transaction of sale shall be independently established through 
convincing, reliable and cogent evidence, which is absolutely missing 
in this case. In whose presence, where, on what date and time the 
transaction of sale took place and how the sale consideration was paid 
to the vendors including the two illiterate and rustic village ladies, are 
all such begging questions, which have not been answered in any 
manner. 
14. 
  
The inflexible, hard and fast rule is, that when any 
transaction is made by anyone where “Parda Nasheen” lady’s vital 
interest is involved then, the following conditions are to be invariably 
and essentially fu
-
 
 
 
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6 
(iii) 
in the case of “Parda Nasheen” rustic village 
ladies, at the time of transaction such ladies were 
fully made to understand the nature of the 
transaction and the consequences, emanating 
therefrom and;  
(iv) 
that at the time of transaction, the ladies were 
having access to independent advice of their nearer 
and dearer, who have no hostile interest to them.” 
None of these conditions was in any manner fulfilled or complied with.  
15. 
  
The plea that in those days, getting thumb impression or 
signatures of the vendors was not mandatory, is absolutely fallacious 
because the West Pakistan Land Revenue Act, 1967 was enacted 
two years earlier to the transaction where-under, the presence of the 
vendors before the Revenue Officer at the time of attestation of 
mutation and after getting their consent, explaining the nature of the 
transaction to them and thereafter getting their thumb impressions, 
was mandatory.  
 
After careful scrutiny we find that the evidence furnished by the 
respondent/defendant is absolutely silent, as to what was the reason 
when the vendors to the transaction did not appear nor they thumb 
impressed the mutation, thus, the attestation of mutation by the 
Revenue Officer and that too, in another “Mouza” much away from 
the property, was surely against the mandatory provision of law. This 
fact by itself speaks volumes of mala fide, misrepresentation and 
fraud, having been committed in the course of attestation of mutation.  
16. 
  
As discussed above, not a single word has been stated by 
the attorney of the defendant or his witnesses that on what date, place 
and time the transaction of sale took place, thus, when the basic 
transaction, on the basis of which the mutation was entered and 
attested, has not been established then, the impugned mutation 
CA 525/13 
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absolutely loses even the little worth attached to it, nor it can be held 
to be a valid document, duly executed. Mere incorporation of such 
invalid mutation in the periodical record and its subsequent repetition, 
is of no legal benefit to the respondent/defendant because the same 
was invalid for having no sanction of law. The circumstances 
surrounding it, have rendered it the most suspect document.  
17. 
  
In the case of “Parda Nasheen”  ladies, under the rules it 
is a consistent practice that before the attestation of mutation by the 
Revenue Officer, a Local Commission is invariably appointed, 
accompanied by two attesting witnesses, preferably the close relatives 
of the ladies, to identify them before the Local Commission and also to 
become attesting witnesses to the statements, given to the 
Commission to dispel any apprehension of fraud or misrepresentation 
because “Parda Nasheen” ladies, keeping in view the traditions and 
culture of the society, do not appear in the common assembly. The 
Local Commission and the two witnesses must establish that the ladies 
gave statements with their free will, full understanding about the 
nature of the transaction and also admitting of having received the 
sale consideration for the land sold and that, at the relevant time, they 
were having free and full advice of the close relatives. The departure, 
made by the Revenue Officer in this case, from the well prescribed 
procedure, strongly suggests that foul play was committed and 
everything was arranged in a concerted manner. It was for this reason 
that, the two attesting witnesses to the mutation were also not 
produced as they were not supporting the transaction. The fact that 
the mutation was attested in the absence of all the three vendors, as 
none of them have thumb impressed the same, is a blatant violation of 
the mandatory provision of sub-s.(7) of s.42 of the Land Revenue 
Act.  
CA 525/13 
8 
18. 
  
Albiet, the mutation in the present form cannot be held to 
be a document, duly executed, even then, the evidence of the two 
attesting witnesses was very much necessary, as required under 
Article 17 read with Article 79 of the Qanoon-e-Shahadat Order, 
1984.  This was so essential in the peculiar facts and circumstances of 
the case, where the entire onus of proof did lay on the 
defendant/respondent.  
 
The contention that the mutation is a 30 years old document, 
therefore, under Article 100 of the Order, 1984 it was admissible in 
evidence, is equally misconceived one. There is a sky high difference 
between admissibility of document and its evidentiary value. Moreover, 
when registered document is subject to proof and production of two 
attesting witnesses becomes essential when its execution is denied by 
the executants, as required by the proviso to Article 79 of the Order, 
1984 then, presumption attached to 30 years old document under 
Article 100 of the Oder, 1984, cannot be placed on better pedestal 
than a registered document, which under the Registration Act, 1908 
is considered to be a notice to the public at large and carries much 
more sanctity under the law and when this mutation is not thumb 
impressed by the executants then, it is not protected under the 
provision of Article 100 of the Order, 1984, nor the relevant 
presumption is attached to it.  
19. 
  
The learned Single Judge and the Trial Court have 
conveniently ignored all the above facts, which are vital and 
fundamental in nature, while giving the verdict on the issue of 
limitation.  
 
In the first instance it may be pointed out, without any fear of 
denial, that fraud vitiates every solemn transaction and Court of law 
CA 525/13 
9 
shall, in no eventuality, endorse and perpetuate a fraud once it is 
proved to have been committed. Any transaction, which is the result of 
misrepresentation, is not protected on the ground of period of 
limitation. It is a settled principle of law that whenever such 
transaction is pressed into service or is pleaded, the Court of Law has 
to refuse to give effect to the same, much less to execute the same or 
endorse and acknowledge it. In the present case, appellant No.1 has 
given ample explanation that on return from Sindh province, he came 
to know about the fraudulent transaction i.e. the attestation of 
mutation and without any delay all of them including the two ladies 
instituted the suit within a month from the date of knowledge, 
therefore, the learned High Court fell into grave error by knocking out 
the appellants/plaintiffs on the misconceived notion with regard to the 
period of limitation. The findings recorded and the conclusion drawn in 
this regard, are absolutely untenable in law.  
20. 
  
Before concluding this judgment, it is deemed essential to 
point out that the High Court has a very limited revisional jurisdiction, 
the parameters of which have been well defined by S.115, CPC. In the 
case of PATHANA v. Mst. WASAI (PLD 1965 SC 134) this Court 
has held that where a sentence is capable of two equal interpretations, 
even then the one preferred by the District Appeal Court cannot be 
said to have misdirected himself by adopting one of them, rather a due 
weight shall be given to the same. On re-appraisal of evidence, the 
High Court in its limited revisional jurisdiction cannot substitute its 
own opinion for that of the District Appeal Court even if it is possible, 
unless and until the interpretation adopted by the District Appeal Court 
has caused serious and grave miscarriage of justice. In the present 
case, there was no occasion for the High Court to indulge in such 
exercise and that too in a limited and confined revisional jurisdiction.  
CA 525/13 
10
21. 
  
For the reasons stated above, this appeal is allowed, the 
impugned judgment dated 15.04.2013 of the learned Single Judge of 
the Peshawar High Court, Abbottabad Bench, Abbottabad is set aside, 
while the judgment and decree of the learned Additional District Judge, 
Haripur 
dated 
7.5.2005 
is 
restored 
and 
the 
suit 
of 
the 
plaintiffs/appellants is decreed as prayed for, with no order as to costs. 
 
 
Judge 
 
  
 
 
Judge  
Islamabad, the   
27th January, 2016 
Nisar /* 
 
‘Approved For Reporting’ 
 
