' JAWWAD S. KHAWAJA, J.---The petitioner Mst. Nusrat Bibi and respondents Nos.4 and 5, namely, Mansoor Ali and Gulfam Abbas are sister and brothers, respectively. They were co-owners in the suit property. They filed a suit seeking declaration and permanent injunction in the circumstances appearing below.
2. It was the case of the plaintiffs above named that the respondents Nos.1, 2 and 3 fabricated a power of attorney dated 30-7-1997 (Exh.P.3) purporting to be executed by the plaintiffs, whereby Muhammad Ashraf Mehr (respondent-defendant) allegedly was appointed as their general attorney in respect of their rights in the suit property. Based on the said power of attorney, Muhammad Ashraf Mehr executed a sale-deed dated 21-10-1997 (Exh.P.4) in favour of Muhammad Nadeem and Muhammad Nawaz (respondents Nos.2 and 3 defendants).
3. According to the plaintiffs, they never executed the power of attorney (Exh.P.3) and, as such, the sale-deed (Exh.P.4) did not operate to convey title in the suit property to respondents Nos.2 and 3.
The suit was resisted by the respondents-defendants. Issues were framed on which the parties led evidence.
4. The learned trial Court vide judgment dated 28-6-2003 decreed the declaratory suit filed by the plaintiffs. It was held that the power of attorney (Exh.P.3) had not been executed by the plaintiffs. In addition, it was held by the learned trial Court that the respondents Nos.4 and 5, namely, Mansoor Ali and Gulfam Abbas were minors and, therefore, lacked legal capacity to execute the said power of attorney.
5. On appeal, the learned appellate Court vide decree dated 12-3-2004 has upheld the decree of the trial Court to the extent of Mansoor. Ali and Gulfam Abbas (respondents-plaintiffs), on the ground that they were minors.- However, in respect of the petitioner Nusrat Bibi, it has been held that she had duly executed the power of attorney (Exh.P.3) and, therefore, the sale of her share through the sale-deed (Exh.P.4) was validly made.
6. According to learned counsel, the principal reason, which has prevailed with the appellate Court while holding against the petitioner, is that the petitioner did not seek to have her thumb-mark on the power of attorney (Exh.P.3) compared with her admitted thumb-impression. Learned counsel, firstly, states that once the petitioner had denied having executed the power of attorney (Exh.P.3), the onus of proof shifted onto the respondents-defendants and it was for them to have her thumb- impression compared with the thumb-impression appearing on Exh.P.3.
7. Secondly, learned counsel has contended that there is no person mentioned as the identifier of Nusrat Bibi at the time of registration of Exh.P.3. Only one Muhammad Ashraf Mehr, who is the purported attorney, has been mentioned as a witness in the registration of proceedings.
8. It was next contended by learned counsel that Muhammad Nadeem appears as the sole witness to the general power of attorney (Exh.P.3). He is also the beneficiary/transferee of the suit property through the impugned sale-deed (Exh.P.4). Finally, it has been contended that the photograph, which has been pasted on Exh.P.3 purporting to be that of the petitioner Nusrat Bibi, is actually the photograph of someone else. To support his contention, he has drawn the attention of the Court to the original identity card of Nusrat Bibi issued by the Pakistan Army, and states that Nusrat Bibi will herself be present on the next date of hearing. From the aforesaid Identity card, it does appear that the photograph on. Exh.P.3 is of a woman different from the one whose photograph appears on the identity card.
9. The above contentions have merit and have remained uncontroverted as none has appeared on behalf of the respondents. Additionally the learned appellate Court did not make any attempt to see if the purported photograph of the petitioner Mst. Nusrat Bibi appearing on the power of attorney was indeed her photograph. This is essential considering that it was a material circumstance of the case and also because there was no proper identification of the petitioner before the Sub-Registrar when the power of attorney (Exh.P.3) was registered. The petitioner is present in Court today. It is apparent that the photograph on Exh.P.3 is not hers. Here I may also add that the learned trial Court correctly held that it was for the respondents to get the thumb- impression of the petitioner compared with the thumb-impression appearing on the power of attorney (Exh.P.3).
10. In the foregoing circumstances, this petition is allowed and, as a consequence, the suit filed by the petitioner along with her two brothers (respondents Nos.4 and 5 herein) is decreed as prayed for.