' ABDUL SATTAR GORAYA, J.--- By means of this application under section 115, C.P.C. The judgment and decree dated 17-6-2006 passed by the learned Additional District Judge, Okara and that of the learned trial Judge dated 28-1-2006 have been brought under challenge.
2. Facts as steamed-out from pleadings of the parties are that Mst. Syeda Shabbir Begum, predecessor-in-interest of the respondents was owner of 17 Kanals, 17 Marlas of land, fully described in para No,1 of the plaint. She entered into agreement of sale with the petitioner for a consideration of Rs,2,05,000. She received an amount of Rs,2,00,000 as earnest money. It is stated that the suitor was put into possession in part performance of the agreement of sale. Mst. Syeda Shabbir Begum died in the meanwhile and after her death, her legal heirs refused to perform their part of contract. It was averred that her legal heirs receded back for wordly temptations and they, in fact, intended to dispose of the property to some one else. In the written statement, the averments contained in the plaint were emphatically denied. Legal heirs of Mst. Syeda Shabbir Begum came out with the plea that she was patient of cancer and at least 6/7 years earlier, her movement was curtailed. It was stated that Mst. Syeda Shabbir Begum died on 30-8-1998 whereas the agreement of sale is shown to have been executed and registered on 26-10-1998 by producing some other lady. Certain preliminary objections were also taken. Divergent pleadings of the parties gave rise to as many as eight issues including one of relief. Onus with regard to Issues Nos.1, 2, 3 and 6 was proposed upon the defendants whereas regarding the remaining issues Nos.4, 5 and 7, the onus was proposed upon the suitor. Apart from the oral evidence, documents Exhs.P. I to P.3 were tendered in evidence. Two witnesses were produced by the defendants and in evidence; extract of the death entry from the register maintained in the Union Council was produced as Exh.D.1. Issues Nos.1 to 3 were decided together and the same were answered against the defendants. Issues Nos.4 and 5 were also decided jointly and answered against the petitioner.
Onus with regard to Issue No,6 was proposed upon the defendants and the same was answered in their favour. One Issue No,7, without there being any independent discussion, it was stated that the same is answered against the petitioner. In nutshell, vide judgment and decree dated 28-1-2006, the suit brought by the petitioner was dismissed. An appeal taken against the said judgment and decree also failed before the learned Additional District Judge on 17-6-2006.
3. Learned counsel for the petitioner states that the document Exh.P.1 for all purposes is a registered document and carries a strong presumption of correctness under section 49 read with section 60 of the Registration Act. Bitterly argued that onus with regard to Issue No,6 was proposed upon the defendants but in the evidence apart from the two witnesses, one document namely the death entry (Exh.D.1) has been brought on the record to discharge the onus. Further argued that the document Exh.P.1 per se is not admissible because the same was not a certified copy and in absence of any rebuttal of evidence brought by the petitioner, the defendants remained unsuccessful to dislodge the presumption attached to the registered document. It is further argued that B judgments and decrees passed by both the Courts below are based on misreading and non-reading of evidence and thus illegalities and irregularities ad-infinitum have been committed in exercise of their jurisdiction.
4. Conversely, Syed Kaleem Khurshid, Advocate appearing on behalf of the respondents argued that the judgments and decrees of both the Courts below are rich in detail and the same are not suffering from any illegality or irregularity. Further argued that Mst. Syeda Shabbir Begum was a Pardah Nashin lady and she was bed-ridden for the last about 6/7 years and she has been subjected to fraud and the suitor made an attempt to deprive the legal heirs of inheritance.
5. I have given conscious thought to the arguments made by learned counsel for the parties.
Available file perused.
6. The main hub of the case of the petitioner is that the document Exh.P.1 is a registered document which carries a presumption of truth but on the side of the defendants, there is no evidence whatsoever available on the record to rebut the strong presumption. On visual look, one thing is manifest that Haji Muhammad Saleem Haider and Syed Nasir Mahmood son of Syed Muhammad Ali are the marginal witnesses of the deed. The document is shown to have been scribed by Muhammad Ali petition-writer. Syed Makhdoom Hussain Gilani, Advocate identified her. Identifier is husband of Mst. Syeda Shabbir Begum who is a practising Advocate and this fact is discernible from the endorsement made by the Sub-Registrar on the reverse side of the instrument (Exh.P.1).
Mst. Syeda Shabbir Begum put her thumb impression below her name as executant and the number of her Identity Card has also been noted. On the side of the respondents, two witnesses appeared.
7. D.W.1 when entered in the witness-box, he denied that on the reverse side of the agreement, he never put his signatures to identify his wife Mst. Syeda Shabbir Begum. In the cross-examination, he stated that his wife once had executed the General Power of Attorney in his name but the same was later on, 10/15 years ago, had been cancelled by her through Abtaal Nama. He further stated that where-after no Power of Attorney was given by his wife in his favour. The witness regretted his inability to disclose that as to whether she had mortgaged his property with the Bank sometime or not. Zafar Ali Shah was produced as D.W.2. He stated that Makhdoom Hussain Shah, husband of Mst. Syeda Shabbir Begum, is known to him. He stated that four years ago, his wife died. He participated in the funeral ceremony. He stated that he does not know the remaining relations of Mst. Syeda Shabbir Begum. In the cross- examination he stated that after the funeral ceremony, he never went in the said village.
8. As against this Haji Saleem Haider appeared as P.W.1. He stated that Imdad Shah and his son Ibrar Shah have come at his residence and asked him to put his signatures on the deed but he denied; that Mst. Syeda Shabbir Begum has not signed the instrument in his presence, whereafter he went in the company of both of them to Mst. Syeda Shabbir Begum. Makhdoom Hussain Shah, Advocate, her husband, was already there. He stated that in his presence Mst. Syeda Shabbir Begum accepted her signatures to be true and its execution was acknowledged. In the cross- examination, he stated that when the deed was brought before him, the signatures of Nasir Mahmood, Shabbir Ahmad and Imdad Hussain were already there. He admitted the relationship with the suitor and in the same breath he stated that her younger sister is wife of Makhdoom Hussain, Advocate. Nasir Mahmood P.W.2 fully supported the contents of the agreement and its execution. He stated that Mst. Syeda Shabbir Begum and his son Zafar Shah had entered appearance before the Sub-Registrar and on identification made by Makhdoom Hussain Gilani, Advocate, said instrument Exh.P.1 was attested. P.W.3 Syed Imdad Hussain Shah appeared as a witness of his own. He stated that Mst. Syeda Shabbir Begum is his real sister. He stated that the agreement of sale Exh.P.1 was purchased on 26-10-1998 but it was written on 27-10-1998. At the time of registration, he stated that Ibrar Hussain Shah, Makhdoom Hussain Shah, Zell. Shah, Nasir Mahmood and Mst. Syeda Shabbir Begum appeared More the Sub-Registrar. Makhdoom Hussain Shah, Advocate identified Mst. Syeda Shabbir Begum. Both the witnesses were put to lengthy cross- examination but they did not concede any limb of defendants' version.
9. Chaudhry Khurshid Ahmad, Advocate appearing on behalf of the petitioner bitterly argued that this is a case of registered document and strong presumption under sections 49 and 60 of the Registration Act is attached to it and until strong evidence becomes available on the record to rebut the presumption, the said document shall occupy the field and shall be deemed to be correct for all purposes. Reference has been made to Rasool Bakhsh and another v. Muhammad Ramzan 2007 SCMR 85, Abdul Ghafoor and others v. Mst. Anwar Jehan Begum and others 2004 MLD 894, Muhammad Bashir and 6 others v. Muhammad Ashraf and 26 others 2004 CLC 1880 and Lt. Muhammad Sohail Anjum Khan and others v. Abdul Rasheed Khan and others 2003 MLD 1095.
Conversely, the learned counsel for the respondents relied upon Sheikh Muhammad Sharif Uppal v.
Sheikh Akbar Hussain and others PLD 1990 Lah. 229, Shahadat Khan and others v. Nawab and others 2005 YLR 2020, Mst. Kulsoom Bibi and another v. Muhammad Arif and others 2005 SCMR 135, Muhammad Ashraf v. Shah Noor Khan and another 1996 MLD 1819, Water and Power Development Authority v. Ghulam Shabbir 1998 MLD 1592 and Khushi Muhammad v. Abdul Sattar PLJ 2003 Lah.
367 to contend that rebutable presumption is attached to the said document and even if it was a registered document, heavy burden lays upon the suitor to discharge the onus and prove the genuineness of the said transaction. The proposition of law is too settled to admit any debate that endorsement appearing on the reverse side of the instrument carries a strong presumption of correctness and the necessary implication to it is that the document was executed and was signed by the executant before the competent authority. In other words, the registered document had a sanctity attached to it and very strong evidence is required to challenge the genuineness of the said instrument and the same is the ratio laid down in the judgments cited by learned counsel tnr the petitioner. This question also came-up for consideration in Mirza Muhammad Sharif and 2 others v. Mst. Nawab Bibi and 4 others 1993 SCMR 462 wherein it was held:--- "It is by now well-settled that registered document has sanctity attached to it and stronger evidence is required to cast aspersion on its genuineness. There is no evidence worth the name on the file to show that the sale-deed was forged and fictitious. On the contrary the attesting witnesses and the scribe have testified to its genuineness: The mere fact that their statements do not mention the perusal of the original sale-deed at the time of their examination cannot per se lead to the conclusion that their veracity is doubtful."
' The view taken in Abdul Ghafoor's case 2004 MLD 894 is in conformity with the principle of law laid down in Mirza Muhammad Sharif's case 1993 SCMR 462 by the apex Court.
10. This is to be seen now that what evidence has been brought on the record to rebut the strong presumption. I have considered the case-law cited at the bar by the learned counsel for the respondents as well. All the judgments produced except the one pertaining to the transaction where the agreement of sale was not registered one. In Muhammad Ashraf's case 1996 MLD 1819 it was held that the document has been received in evidence without proof of the signatures or handwriting of a person who alleged to have signed it. It was necessarily an unregistered document. In the case of Water and Power Development Authority's case 1998 MLD 1592, in a similar manner, the instrument was unregistered and it was held that scribe of the document should imperatively be produced in evidence to prove the execution. In Khushi Muhammad's case PLD 2003 Lah. 367, the instrument was also not registered.
11. The moot question to be decided by this Court is that as to whether in the given situation when the evidence referred to above in the preceding paragraphs has been adduced, the genuineness of the document has been proved or not. Even if it was a registered document, on the basis of what evidence, the authenticity of the registered document has been rebutted. Only there is one document in the field, i,e, Exh.D.1. In column No,9 of the Register Death Entry-Form-II, the death of Mst. Syeda Shabbir Begum has been shown to be on 30-8-1998 but one Khan Muhammad Chowkidar got registered the said entry after about seven months on 25-3-1999. The document Exh.D.1 was admitted in evidence under objection. The said document was shown to have been attested by the Secretary of the Union Council. In any case, the said document was not a certified copy of the original record. When questioned, as to why the original record was not produced before the Court and the said document is not shown to have been compared with the original register, he stated that it was not necessary at all and the death entry contained in the relevant register maintained by the Union Council is a sufficient proof and the entry has to be given preference to the oral evidence adduced by the suitor. Reference has been made to Bhag Bhari v.
Akbar Khan and others 1987 CLC 1543. The argument has no force. In judgment relied upon by the learned counsel, an attested copy was not produced. Said judgment in circumstances has been given where the certified copy is available on the record. This question also came-up for consideration in Muhammad Aslam and another v. Senior Civil Judge, Gujrat and 2 others 2000 MLD 1581 wherein the controversy has been set at rest. Mere fact that it was a document attested by the Union Council, it shall not be treated to be a certified copy. Certified copy is the one which forms part of the public record and has been issued by the authority competent to issue while comparing with the original document or register. Mere fact that the signatures of the copyist or the Secretary of Union Council are appearing on the said instrument, is not sufficient to hold that the said document was admissible in evidence until the certified copy is brought on the record and the same is proved by bringing the original record and the Secretary Union Council or the Copyist.
Relevant portion of the judgment afore-noted i,e, Muhammad Aslam's case 2000 MLD 1581 reads:-- - "The learned counsel submitted that the term 'displaced' relates to entirely different situation and an affectee need not necessarily be a displaced person. Learned counsel for the respondents took the stand that while filing reply to the application for amendment, the respondents had categorically disputed the legality, admissibility and genuineness of the certificates and their reply, dated 7-11-1992 is on record at page 182. The learned counsel also submitted that the certificates were not certified in accordance with the provisions contained in Articles 87 and 89 of the Qanun- e-Shahadat Order, 1984 and placed reliance on 1991 CLC page 1201 where it was held that the provisions of Qanun-e-Shahadat with respect to certification of documents is mandatory and any document not certified in accordance thereof cannot be relied upon. Reliance was placed on PLD 1962 Lahore 492 in which it was held that copy certified in terms of section 76 of the Evidence Act (Article 87 of Qanun-e-Shahadat Order, 1984) only is the certified copy and that a copy must contain note that it is true and correct copy of the original and mere signature of "Nagai Koninda" and "Tasdeeq Koninda" is not enough".
12. The document brought on the record on its face value has to be kept out of consideration for the conspicuous reason that the original register was not produced and it was not a certified copy of the original record. Mere fact that it was attested by Secretary Union Council, will not change its nature and it cannot be treated to be certified copy within the ambit of section 87 of the Qanun-e- Shahadat Order or under section 76 of the old Evidence Act. Article 87 of the Qanun-e-Shahadat Order, 1984 in terms provides that every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefore, of course with a certificate written at the foot of such copy that it is a true copy of such document or part thereof as the case may be and such certificate shall be dated and scribed by such officer with a signature, seal and designation of the said officer. There is no such indication on the record and the document Exh.P.1, Death Entry Register, cannot be read into evidence on its face value until the original register is produced and the certified copy is brought on the record. Had the original record been produced before the learned trial Judge, the lapse of time appearing between the death of Mst. Syeda Shabbir Begum and the date of entry, could easily have been determined. The learned trial Court has been deprived of the opportunity of proper dissection of the record.
13. This case in fact, is not free of complications. The judicial pronouncements have woven a net of protection of Pardah Nashin ladies who because of their ignorance, experience and social conditions, are not able to understand the nature of the transaction, right or wrong. In the cases where there is a registered document but its authenticity and genuineness has been questioned, onus to prove regarding the genuineness in certain cases lies on the shoulder who is a beneficiary of the document especially in a case where there is a Pardah Nashin lady. In the case in hand, it has been noted that the Pardah Nashin lady was duly identified by her Iftisband who is a practising Advocate and sufficiently capable of understanding right or wrong. Husband of the deceased lady when entered in the witness box, he was confronted with his signatures and a suggestion was put that as to whether he was Willing to send the questioned document to be compared with the admitted thumb impression of his deceased wife, he denied and came out with the plea that for certain legal disability, he is not willing to send the said document to the expert. Evidence on the record shows that an application was made by the petitioner before the learned trial Judge that the said document be sent to the expert for comparison in terms of Article 59 of the Qanun-e- Shahadat Order with the admitted signatures of the deceased Mst. Syeda Shabbir Begum but the application was dismissed and proposed relief was not granted to the petitioner up to the level of this Court, when he filed Writ Petition No,10389 of 2005. While dismissing the Constitutional petition, this Court has gone mainly by the consideration that previous application of the petitioner for comparison was dismissed in the earlier round and having failed the same, in a second round the new document has been brought on the record. In the circumstances, it was held that it was not permissible in law to bifurcate a similar relief in the numerous applications. To decide this matter, I am sitting in revisional jurisdiction in which not only the final judgment and decree but the proceedings recorded by the Courts below can also be checked. Had the said exercise been allowed to compare the questioned document with the admitted thumb impressions appearing on some documents of the deceased Mst. Syeda Shabbir Begum, the matter could have been resolved and some material would have come on record to reach at a correct conclusion? Even at the stage of evidence when Makhdoom Hussain Shah, husband of the deceased lady, entered in the witness box, offer was made but he denied the same.
14. Learned counsel for the respondents laid much emphasis on the document Exh.D.1 to demonstrate that Mst. Syeda Shabbir Begum died on 30-8-1995 and when the argument of sale Exh.P.1 was shown to have been executed, she was not available in this Universe and had joined the majority much earlier. Petitioner Syed Imdad Hussain Shah is real brother of the deceased Mst.
Syeda Shabbir Begum. At least being a brother he knew the exact date of death of the deceased and if at all he had to prepare the forged document, he was alive to the situation and the exact date, as to when Mst. Syeda Shabbir Begum died and possibly he could not commit such a blunder. Makhdoom Hussain Shah, husband of the deceased, when entered in the witness box admitted that once he was appointed as a constituted attorney on behalf of his wife but that was cancelled through Abtaal Nama 10/15 years ago. P.W.1 is also related to both tl. Parties. When the statement and this part of the evidence is placed in juxtaposition with the evidence brought by the suitor, it appears that there was some irritant issue between the husband and the wife and reposing no confidence upon the husband, she might have cancelled the Power of Attorney. After Exh.D.1 is kept out of consideration being not admissible in evidence and it is held that the said document contains no authenticity, there remains no evidence in the field to rebut the genuineness of the transaction but one thing is manifest that Mst. Syeda Shabbir Begum was a Pardah Nashin lady and view of the apex Court is consistent that in case of Pardah Nashin lady, great care and caution I should be adopted by the Courts. The evidence brought on the record is insufficient. When the challenge has been thrown to the authenticity of the document, it is imperative upon the suitor to prove genuineness of the said document by producing the Sub- Registrar in evidence with the original record available in his office. The trial Court was not denuded of his power to summon all the necessary record to reach at a just conclusion. Neither the evidence of the scribe is available on the record nor was the original register of the death entry produced in evidence to reach at a just conclusion. On the face of this situation that it has been alleged in specific terms that Mst. Syeda Shabbir Begum was a Pardah Nashin lady and she was not capable of moving about, it had become all the more necessary for the Courts below to unearth the truth by summoning the scribe and the Sub-Registrar to stand in the witness box. On both sides, this is a badly conducted case. I fail to understand that as to why Makhdoom Hussain Shah, Advocate, husband of Mst. Syeda Shabbir Begum, was reluctant to get his signatures compared with the admitted ones which ought to have been obtained by the Court and attest the same before it could send to the expert for opinion under Article 59 of the Qanun-e-Shahadat Order. Therefore, the interest of justice demands that in view of the plea taken in the written statement that she was bed-ridden and never appeared before the Sub-Registrar, the evidence of the Sub-Registrar and the scribe is also necessary. The orignal register of death entry shall also be summoned by the Court and record the statement of Secretary Union Council to reach at a just conclusion and to do complete justice between the parties. In view of the reiteration in Mst. Fazal Jan v. Roshan Din and 2 others PLD 1992 SC 811, this is a fit case where the permission of additional evidence to dig-out the truth to the parties should be granted. I have come to the inescapable conclusion that evidence adduced by both the parties is laconic and insufficient, therefore, the circumstances of the case warrant to remand the matter.
15. In nutshell, the matter shall go back to the learned trial Judge who shall summon the original Register Amwaat maintained in the Union Council. Evidence of the Sub-Registrar and the scribe should also be recorded and the original record maintained in the office of the Sub-Registrar shall also be summoned. If the admitted thumb impressions of Mst. Syeda Shabbir Begum are available some where and acceptable to both the parties, this is a fit case where the learned trial Court shall not hesitate to exercise its power to send the documents to the expert under Article 59 of the Qanun-e-Shahadat Order for comparison of the two signatures; not only of the deceased lady but also her husband namely Makhdoom Hussain Shah, Advocate.
16. For whatever it has been stated above, this revision petition is accepted. The judgments and decrees of the Courts below dated 17-6-2006 and 28-1-2006 are set aside of course for the reasons indicated in the preceding paragraph of this judgment. There shall, however, be no order as to costs.