' SARMAD JALAL OSMANY, J.---This Civil Revision Application impugns the judgment dated 19-5- 2004 passed by the learned District Judge, Naushahro Feroze, in Civil Appeal No,37 of 2003 whereby the Judgment and Decree dated 19-3-2003 passed by the Learned Ist. Civil Judge, Naushahro Feroze in F.S. Suit No,13 of 1995 was set aside.
2. Briefly stated the facts of the matter are that the Applicants/Plaintiffs had filed Suit No,65 of 1991 on 8-5-1991 against Respondent No,1 Mst. Wakeelan praying for specific performance of the Sale agreement dated 4-4-1991 between the parties for sale of agricultural land situatd in Deh Gagi-II admeasuring about 5-00 acres, Taluka Naushahro Feroze. In the said Suit, it has been averred by the Applicants that they had entered into the said agreement with Respondent Mst. Wakeelan and Mst. Akhtari/Mst. Rashidan all of them being joint owners of the land in question. Whereas Mst.
Akhtari and Mst. Rashidan had performed their part of bdgain by conveying their share of the property to the Applicants, Mst. Wakeelan had refused and hence the Suit. Mst. Wakeelan appointed Respondent No,2 Maqbool Ahmed as her General Attorney, who filed a written statement on her behalf denying the agreement in toto. The evidence of Applicant Khalilur Rehman, Mst. Rashidan and Mst. Akhtari was recorded as well as that of Maqbool Ahmed. However at the stage of final arguments the Suit was withdrawn with permission to file a fresh.
3. Thereafter on 25-8-1995 Suit No,13 of 1999 (New Number 12 of 2002) was filed by the Applicants against Mst. Wakeelan and Maqbool Ahmed with the same prayers as in the previous Suit i,e, for Specific Performance of the Agreement to sell between the parties. Again a written statement was filed by Maqbool Ahmed on his own behalf as well as on behalf of Mst. Wakeelan since according to him he had purchased the land from the lady per registered sale-deed and possession had already been handed over to him. In order to prove the case again Applicant Khalilur Rehman stepped into the witness box and produced the agreement to sell between the parties as well as true copies of the depositions of Mst. Rashidan and Mst. Akhtari recorded in Civil Suit No,65 of 1991.
The Respondent Maqbool Ahmed examined himself only in defence of the Suit and denied that the agreement to sell was ever executed by Mst. Wakeelan. As stated above the Suit was decreed in favour of the Applicants but in Appeal said Decree was reversed.
4. In support of the case Mr. Abdul Haq Kamboh, learned Counsel for the Applicants has submitted that he only ground whereby the learned Appellate Court allowed the Appeal was non- examination of the attesting witnesses of the agreement to sell between the parties which was mandatory in terms of Article 79 of the Qanun-e-Shahadat Order and hence fatal to the Applicants' case. Per learned Counsel this line of reasoning adopted by the learned Appellate Court entirely ignores the deposition of Applicant Mehrban Khan according to which the Notary Public who had notarized the agreement viz. Allah Bux, Stamp Vendor/Scribe Muhammad Uris and marginal witness viz. Ghulam Mustafa had died. Hence per learned Counsel the transaction between the parties would not be covered under Article 79 of the Qanun-e-Shahadat Order, which provides that atleast two attesting witnesses must be examined, if they are alive, in order to prove the agreement in question. Consequently in the circumstances the evidence of Mst. Rashidan and Mst. Akhtari could be relied upon who were the co-executants of the agreement in question and who have admitted the same as well as the fact that Mst. Wakeelan had also executed.- it. In this respect learned Counsel has referred to Article 47 of the Qanun-e-Shahadat Order, according to which the evidence given by a witness in any judicial proceedings can be relied upon in a subsequent judicial proceedings for proving the truth of any fact when the said witness cannot be produced again without an amount of delay and expense. Per learned counsel it has come on the record that Mst. Akhtari the mother of Mst. Wakeelan and Mst. Rashidan is an aged lady of more than 85 years and is living in the Punjab and similarly Mst. Rashidan is also residing there. Hence they could not be produced without an amount of delay and expense. In support of his submissions learned counsel has relied upon Allah Jiwai v. Maqbool Shah (2005 MLD 261), Nazir Ahmad v. Muhammad Rafiq (1993 CLC 257) and Zafarullah Khan v. Karim Bibi (2000 YLR 2789).
5. Next learned counsel submitted that under Article 71 of the Qanun-e-Shandat Order the oral evidence of a living person must in all cases be direct and hence it was incumbent upon Mst.
Wakeelan to have appeared before the learned Civil Court, filed her written statement and given evidence. Since she has failed to do so, her defence cannot be considered. In this regard learned counsel has also submitted that when Mst. Wakeelan could come from Punjab in order to execute the registered Sale-Deed on 25-8-1995 in favour of Maqbool Ahmed, she could very well appear in Court. In support of this proposition, learned counsel has relied upon Allah Jiwai v. Maqbool Shah (2005 MLD 261).
6. Finally learned counsel has submitted that under Section of the Contract Act, a Power of Attorney must specify the acts which the Attorney is authorized to perform on behalf of his principal. Mst.
Wakeelan had not authorized Maqbool Ahmed to appear in Court and file the written statement on her behalf or give evidence. Consequently, the evidence of Maqbool Ahmed cannot be considered vis-a-vis denial of the agreement to sell by Mst. Wakeelan. In support of his proposition learned counsel has relied upon Imamdin v. Bashir Ahmed (PLD 2005 SC 418), Talat Jahan Burki v. Member, Board of Revenue. Chief Settlement 'Commissioner, Punjab. Lahore (2005 CLC 269), Mst. Afzal Paracha v. Mst. Fouzia Begum (PLD 2003 Pesh. 40) and Munir Hussain v. Muhammad Aslam (PLD 2003 AJK-16).
7. In view of the foregoing submissions and in the facts and circumstances of the case, learned Counsel has prayed that this Revision be allowed and the judgment and decree of the learned Appellate Court be set aside.
8. On the other hand learned counsel for the respondents has fully supported the judgment of the learned Appellate Court. According to her the burden of proving the agreement to sell was upon the Applicants as they had relied upon it which had been denied by the Respondents. Hence failure by the Applicants to produce the attesting witnesses of the agreement to sell is fatal to their case being in violation of Article 79 of the Qanun-e-Shahadat Order. In support of her case Learned Counsel has relied upon Mst. Rashidan Begum v. Muhammad Yousif (2002 SCMR 1089), Imamdin v.
Merajdin (2003 MLD 329) and Muhammad Arif v. Mahmood Ali (2003 MLD 954).
9. I have heard both learned counsel and my conclusions are as follows:
10. It would be seen that per the case set up by the Applicants in the Suit, all the three ladies viz. Mst.
Rashidan, Mst. Akhtari and Mst. Wakeelan had executed the agreement to sell the suit property to the Applicants. Whereas Mst. Rashidan and Mst. Akhtari had performed their part of the bargain and had conveyed their portion of the Suit property to the Applicants, Respondent Mst. Wakeelan had refused to do so, on the ground that she had never executed the agreement in question. In the written statement filed by Mst. Wakeelan, this factual assertion is denied viz. Execution of the agreement by her, consequently, the burden of proving the same lay upon the Applicants. In this regard it would be seen that per Article 17(2) of the Qanun-e-Shahadat Order, in matters pertaining to financial or future obligations if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly. Further according to Article 79 of the Qanun-e-Shahadat Order if a document is required by law to be attested it shall not be used in evidence until two attesting witnesses at least have been called for the purpose of proving its execution if they are alive and capable of giving evidence and subject to the process of the Court. Finally per Article 80 if no such attesting witness can be found it must be proved that the witnesses are either dead or cannot be found and that the document was executed by the person who purports to have done so. As admittedly the document in question, viz. Agreement to sell is in the nature both of a financial and future obligation, therefore, in my opinion it had to be attested by two male or one male and two female witnesses. A perusal of such document would show that indeed it has been attested by two male witnesses viz. Ghulam Mustafa son of Jamil Ahmed and Badurudin son of Nabi Bux Rajput. Consequently in terms of Articles 79 and 80 of the Order it was incumbent upon the Applicants to have examined both these witnesses unless it could be shown that they were either dead or incapable of giving evidence, in which event the Applicants were free to prove the document in any other manner provided by law.
In this regard only a simple statement has been made by Applicant Mehrban Khan under cross- examination that attesting witness Ghulam Mustafa had died whereas nothing has been stated as to whether or not the other attesting witness Badruddin was alive and capable of giving evidence.
No death Certificate of Ghulam Mustafa or for that matter Badruddin has been produced in order to prove this factum. In view of the foregoing in my opinion the Applicants have failed to prove that the agreement to sell was executed by Mst. Wakeelan. In this respect reference can be made to Muhammad Yakoob v. Naseer Hussain (PLD 1995 Lah. 395), Auqaf Department v. Javed Shuja (1995 CLC 1173) and Mansoor Hussain v. Maqbool Begum (1990 SCMR 1259).
11. As regards the submission of learned counsel for the Applicants that in the previous Suit being No,65 of 1991 both ladies viz. Mst. Rashidan and Mst. Akhtari had deposed that they along with Mst.
Wakeelan had executed the agreement and all of them had received the sale consideration, which is sufficient proof of the execution of said document by. Mst. Wakeelan in terms of Article 47 of the Order, suffice it to say that such evidence could only be used if the Applicants were able to establish that the attesting witnesses were dead and hence could not be found. As I have already held that the Applicants have failed to do so, hence the depositions of these two ladies are not sufficient to prove the document in question. As regards the cases cited by learned counsel viz. Nazeer Ahmed v. Muhammad Rafiq, Mst: Allah Jiwai v. Maqbool Shah and Zafarullah Khan v. Mst.
Hakim Bibi, in my view these are distinguishable as in all of them at least one marginal witness/scribe was examined in order to prove the document in question.
12. As regards learned counsel's submission that Mst. Wakeelan has not stepped into the witness box in order to establish that she never executed the agreement in question, suffice it to say that this burden lay upon the Applicants and not her. Where this burden has not been discharged as in the present case, it could hardly shift to the other side.
13. Finally, vis-a-vis the Power of Attorney in question, a close scrutiny of the same would show that Mst. Wakeelan has authorized her attorney Respondent Maqbool Ahmed, to sell, gift, exchange or otherwise dispose of her share in the property in question as well as to appear in any Court of law in any matter regarding the property and to pursue the same as well as engage counsel for this purpose. In view of such observation I am satisfied that Respondent Maqbool Ahmed had sufficient authority on behalf of Mst. Wakeelan to file the written statement etc. As well as appear in Court to depose on her behalf. Insofar as the case-law cited by Mr. Kamboh on this point is concerned in my opinion the same enunciates the principles regarding interpretation of a power of attorney and I respectfully agree with the same.
14. For all the foregoing reasons this Revision Application is dismissed.