' MIAN SAQIB NISAR, J.---The dispute between the parties, relates to the land measuring 1 Kanal and 13 Marla, situated in Kotli Syed Amir, Tehsil and District Sialkot, which was admittedly owned by Mst.
Barkat Bibi. The petitioners Nos.1 to 3 and respondent No,1 are the sons of Mst. Barkat Bibi, whereas petitioner No,4 and respondent No,3 are her daughters. Mst. Barkat Bibi, allegedly executed a power of attorney, dated 12-12-1990 registered on 13-12-1990 (Exh.D.1) in favour of respondent No,1, who on the basis of the said power of attorney, executed a sale-deed in favour of his son-respondent No,2 on 21-7-1991 for a alleged consideration of Rs,90,000. Mst. Barkat Bibi however, died on 7-8-1991 when the present petitioners being her legal heirs, brought a suit, challenging the power of attorney as also the sale-deed, mainly on the ground that, the power of attorney is a forged document as Mst. Barkat Bibi had never executed the same, conferring any authority upon respondent No,1 for selling the property; besides, it was stated that, Mst. Barkat Bibi was of an advanced age and she was not in a proper state of mind to have executed any such document. The suit was contested by the defendants/ respondents. Issues were framed, parties were put to trial and the learned Civil Judge, vide judgment and decree, dated 18-12-1995 dismissed the suit, holding that the respondents have validly proved the power of attorney, which conferred authority upon respondent No,1 to alienate the property by way of sale and that is what exactly has happened in the present matter. Appeal filed by the petitioner has also failed.
2. Learned counsel for the petitioners contends that, in the facts and circumstances of the case, it has not been proved at all by the respondents that, genuine power of attorney was executed by Barkat Bibi in favour of respondent No,
1. It is argued that, the actual marginal witnesses, of the said power of attorney (Exh.D.1), are Ghulam Nabi son of Muhammad Hussain and Muhammad Sharif Lambardar, but both the witnesses have not been produced for no good reason; D.W.3 Tanveer Hussain, who allegedly claims that power of attorney was executed in his presence, was an employee of respondent No,1; he is not related to the family; as far as the scribe of the documents D.W.4 is concerned, he himself conceded in the cross-examination that, he did not know Barkat Bibi and that, no Identity Card was produced before him at the relevant time. It is also argued that, Barkat Bibi is alleged to have thumb marked the power of attorney, but the opinion of the Finger Print Expert, was not obtained by the respondents to prove a valid execution of the same; all these aspects of the matter, have been ignored by the learned Courts below, while passing the impugned judgments and decrees.
3. Confronted with the above, learned counsel for the respondents states that, the power of attorney is a registered document, which carries a presumption of valid execution and registration under the provisions of Article 95 of the Qanun-eShahadat Order, 1984; besides, it is stated that, it is not the requirement of law that all the marginal witnesses must be examined, when Tanveer Hussain, coupled with the statement of scribe, was sufficient for the purpose of proving the valid execution of the document.
4. I have heard the learned counsel for the parties and find that, once having stated that Barkat Bibi had not executed the power of attorney, the burden had shifted over to the respondents to prove, in positive terms, about the valid execution of the document, particularly in the situation, when Barkat Bibi was admittedly of an advanced age and illiterate woman. Thus, in the circumstances, it must have been established that, she at the time of the alleged execution of power of attorney, had some independent advice of the male member of the family, if the respondents have genuinely got the power of attorney. In the normal course of situation, the power of attorney should have been got witnessed by a close relative such as any of the sons of Barkat Bibi. This is not the position, rather strangely a person, who is a stranger and is also neither present or ex employee of respondent No,1, was brought to witness the document There is no reason to this at all, as to why Ghulam Nabi and Muhammad Sharif have not been examined by the respondent. This tantamounts to withholding the best evidence, and presumption can be raised that, if they produced, would go against the respondents.
5. As far as the statement of D.W.4 is concerned, as has been mentioned above, he did not know Barkat Bibi and has claimed her identification from her photograph, which according to him is on the record. The possibility that, this photograph has been given to him otherwise then at the time of execution of the document, cannot be ruled out. Her identification before the scribe was through the witnesses and the two material witnesses, have not been produced. Even this is not proved that, Barkat Bibi had appeared before the Sub-Registrar. It is also not proved, though it was the duty of the respondents, as to who identified Barkat Bibi at the time of registration of the power of attorney. D.W.3 and D.W.4 are not the witnesses of such registration and have not stated if, Barkat Bibi was present at the time before the Sub-Registrar, when the document was allegedly got registered. All these aspects and evidence has not been considered by the two Courts below, thus it is a case of sheer misreading and non-reading of the evidence, therefore, the concurrent findings of fact, cannot be sustained.
' In the light of above, by allowing this petition, the findings of the Courts below on all the relevant issues are set aside with the result that, suit of the petitioners stands allowed with costs throughout. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.