' JAWWAD S. KHAWAJA, J.---This revision petition impugns the concurrent findings of the learned trial Court dated 8-2-2005 and of the learned lower appellate Court dated 4-6-2005, whereby a declaratory suit filed by the respondent/plaintiff was decreed.
2. The facts of the case have been set out in the impugned judgments and need not therefore, be reproduced in extenso.
3. The petitioner/defendant Mitha son of Baqar is the brother of the respondent/ plaintiff, namely, Mst. Murdian. According to the petitioner, the respondent/plaintiff had gifted her land measuring 22 Kanals and 7 Marlas to the petitioner vide gift Mutation No.8 (Exh.D.2) sanctioned on 13-9-1981.
Thereafter, differences arose between the two and Mst. Muridan respondent/plaintiff claimed the price of the gifted land. According to the petitioner, the differences between the parties were resolved through the intervention of the Bradri and as a result, Exh.D.1 was executed between the respondent/plaintiff and the petitioner Mitha. According to the contents of Exh.D.1, the respondent/ plaintiff has received her claim and there has been complete redressal of her grievance.
4. In addition to Exh.D.1, the petitioner Mitha has also proved gift Mutation No.8 through the Patwari Allah Bukhsh, who appeared as D.W.6. Ghulam Jafar (D.W.4), who identified Mst. Muridan before the Revenue Officer, has supported the defense set up by the petitioners. The other witness before the Revenue Officer, namely, Saleh Muhammad Lumberdar has died. His son Shah Nawaz appeared as D.W.3 to prove the signatures of Saleh Muhammad on the Mutation (Exh.D .2).
5. Learned counsel for the petitioners has also referred to the testimony of Raza Muhammad, who was produced by the respondent/plaintiff as P.W.3. He is related to the parties and admitted categorically that both Ghulam Jafar and Saleh Muhammad, the two identifiers of Mst. Muridan before the Revenue Officer, were honest and truthful persons.
6. Ghulam Siddique (D.W.1),. Who is the scribe of the agreement (Exh.D.1), appeared as a witness and also produced his register showing the entry of the said agreement therein. According to learned counsel, the scribe could, thus, be treated as one of the attesting witnesses.
7. Learned counsel for the respondent has, however, argued that the scribe was not qualified to testify as an attesting witness. He drew the attention of the Court to the very first sentence in the cross-examination of D.W.1 wherein the said witness acknowledged that he did not know the parties to the agreement (Exh.D.l) and nor did he know the witnesses, The petitioners did not make any attempt to have the parties or the witnesses identified by the scribe (D.W.1). In these circumstances, it is not possible to accept the scribe as an attesting witness.
8. Learned counsel for the petitioners did refer to the case titled Mst. Allah Jawai and others v.
Maqbool Shah and others 2005 M LD 261 to contend that the Honourable High Court had held that a scribe was a competent attesting witness. I have gone through the cited precedent and find the submission of learned counsel for the petitioners to be misconceived because the precedent, referred to by him, is clearly distinguishable on facts. The scribe in the said case had deposed that he knew the parties. This is not so in the present case.
9. In addition, learned counsel for the respondent pointed out that when Mst. Muridan appeared as P.W.1, she was not confronted with the agreement (Exh.D.1) and nor was she given any suggestion that she had executed the same. This submission was not controverted by learned counsel for the petitioners. In the circumstances, Exh.D.1 could not have been pressed into service against the respondent.
10. Lastly, learned counsel for the respondent submitted that Fateh Sher, who was one of the witnesses to Exh.D.l, was not produced and no satisfactory explanation was given for this material omission. It is true that Allah Bukhsh, the other marginal witness to Exh.D.1, appeared as D.W.5 and stated that Fateh Sher was unwell. This alone, however, could not be sufficient to justify the nonappearance of Fateh Sher. It may be noted that Fateh Sher could have been produced at an adjourned date or in the alternate if he was seriously ill (which is not the case apparent from the record), he could have been examined through a local commission. The failure of the petitioners to do so gives rise to the inference that Fateh Sher, if produced, would not have supported the case set up by the petitioners.
11. The foregoing circumstances have been duly considered by the learned Courts below, who have concurrently decreed the suit of the respondent/plaintiff. The impugned decrees, in the light of the above discussion, are unexceptionable. Furthermore, learned counsel for the petitioners was unable to advert to any such jurisdictional error or other legal infirmity in the impugned judgments, which would justify interference therein while exercising revisional jurisdiction. In these circumstances, I find no merit in this petition which is, therefore, dismissed.