MIAN SAQIB NISAR, J.--- The property in dispute belonged to one Hayat Muhammad, who had appointed his son-in-law namely Ali Asghar, the husband of Mst. Razia Bibi, his daughter as his attorney A vide general power of attorney dated 9-8-1994; the said attorney, on the basis of the above, has gifted the suit-land in favour of his were Mst. Razia Bibi, vide Mutation No.218 dated 5-6- 1996; after the death of Hayat Muhammad, Mst. Parsan Bibi, his daughter and Dost Muhammad, his brother (the petitioners) flied a suit for declaration against Ali Asghar the general attorney, Razia Bibi, and Roshny Begum, the widow of Hayat, challenging the above gift; this suit has been dismissed by the trial Court vide judgment and decree, dated 7-7-2004, holding that a valid gift has been proved to have been made in favour of Mst. Razia Bibi by her husband Ali Asghar, the general attorney; this remains to be the view of the learned Court of appeal, when the decree was challenged by the petitioner in appeal.
2. Learned counsel for the petitioners by relying upon the judgments reported as Mst. Shumal Begum v. Mst. Gulzar Begun and 3 others 1994 SCM R 818 and Mst. Bandi v. Province of Punjab and others 2005 SCM R 1368 has argued that under the Muhammadan Law, Ito gift can be made through an attorney; this plea when confronted to the respondent's counsel, he submits that such plea has not been raised before the learned trial Court or in appeal; even memorandum of this revision petition, does not mention the above 'point, suffice it to say that this is a legal point and can be raised and agitated at any point of the proceedings. Even otherwise, this plea has been taken by the petitioners in ground (a) of their plaint, as also ground (1) in the memo. Of this revision, may be not so accurately worded.
3. According to the law mentioned above, which has also been relied in an unreported judgment of this Court passed in R.F.A. No.300 of 1998, decided on 1-3-2006, it is categorically enunciated that the donor can only make a gift himself and not through the attorney; the attorney can only be appointed for facilitating the steps for the valid conferment of the rights under the gift, made by the donor. As in this case, the gift has not been made by the donor himself, rather by Ali Asghar, attorney and in the power of attorney, there is no mention, if the gift should be made in favour of Razia. Resultantly, I do not find that any valid gift has been made in favour of Mst. Razia Bibi through Mutation No.218, dated 5-5-1996 and resultantly, the said mutation cannot sustain; the Courts below have illegally and erroneously decided Issue No.6, in favour of the respondents, the findings whereof, are hereby reversed; therefore, the impugned judgments and the decrees are set aside, with the result that the suit brought by the petitioners against the respondent is decreed.