' ABDUS SATTAR ASGHAR, J.---This civil revision under Section 115 of the Code of Civil Procedure 1908 is directed against the judgment and decree dated 3-3-2012 passed by learned Civil Judge Arifwala whereby petitioner's suit for declaration along with perpetual injunction was dismissed. It further assails the judgment and decree dated 14-5-2013 passed by learned Additional District Judge Arifwala whereby petitioner's appeal against the said judgment and decree was also dismissed.
2. Succinctly the facts leading to this civil revision are that Khalida Bibi petitioner lodged a suit for declaration against the respondent alleging that one Nazir Ahmed son of Mola Bakhsh and his wife Mst. Mukhtaran Bibi adopted the petitioner as daughter; that said Nazir Ahmed died on 7-8-2008 whereas his wife has already expired; that Nazir Ahmed in his life time on 27-1-2003 executed a will deed in her favour pertaining to land measuring 23 kanals, 4 marlas and 20 kanals, 9 marlas situated at Chak Shafi Tehsil Arifwala District Pakpattan Sharif and that she has become owner of the suit-land on the basis of will deed dated 27-1-2003 and that respondent being real brother of Nazir Ahmed deceased is denying her ownership and possession over the suit-land hence the suit.
The suit was resisted by respondent contending that Nazir Ahmed deceased had never bequeathed the suit-land in favour of Mst. Khalida Bibi through any will deed dated 27-1-2003; that possession of the suit-land was also never delivered to the petitioner in view of any impugned will deed; that inheritance Mutation No,4703 dated 23-8-2008 pertaining to the legacy of Nazir Ahmed including the suit-land has been duly sanctioned in his favour. Muhammad Shafi respondent also filed a suit for perpetual injunction against the petitioner and other respondents restraining them from interfering in his possession over the suit property. Both the suits were consolidated by the learned trial Court and consolidated issues were framed as arising out of divergent pleadings of the parties. Parties led their pro and contra evidence in support of their respective pleas. The learned trial Court vide impugned judgment and decree dated 3-3-2012 dismissed the petitioner's suit for declaration on account of her failure to produce the second marginal witness and suit for injunctive relief was also dismissed for non impleading all the co-sharers in the joint khata and advised to invoke the jurisdiction of concerned Revenue Court. Petitioner being aggrieved assailed the same through appeal before the learned Additional District Judge Arifwala which was also dismissed vide judgment and decree dated 14-5-2013 hence this civil revision.
3. It is argued by learned counsel for the petitioner that the she has established the execution of will deed in her favour with the help of reliable, independent, confidence-inspiring ocular and documentary evidence; that the impugned judgments and decrees passed by learned Courts below are against law and facts and based on misreading and non-reading of evidence and liable to set aside.
4. I have given patient hearing to learned counsel for the petitioner and carefully gone through the record.
5. At the outset it may be expedient to reproduce the provisions of Articles 17 and 79 of the Qanun- e-Shahadat, 1984 which read as under:- "Article 17:--Competence and number of witnesses.---(1) The competence of a person to testify and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah.
(a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary and evidence shall be led accordingly; and
(b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant.
Article 79.---Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence: ' Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provision of the Registration Act, 1908 (XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied."
6. A will is a disposition of property which takes effect after the death of testator. The doctrine of 'will' is recognized in Muslim Law. Making of will is a divine institution and it is sanctioned by Holy Qur'an and the Sunnah of the Holy Prophet (P.B.U.H). Although the Holy Qur'an does not impose any restriction on the extent of testamentary disposition however there is a complete unanimity of views between the Sunni and Shia Jurists as to the traditional regulation of the will by Holy Prophet (P.B.U.H.) who imposed a limit of one-third. The Sunnis trace the restriction of one-third and prohibition of a will in favour of heirs, to the last address of the Holy Prophet (P.B.U.H.) as follows:-- "O people" verily Allah has specified the share of each heir in the property of the deceased. It is not permissible to make a will in favour of heirs nor should the exceed one-third."
' According to Islamic Jurists a will giving less then one third of the estate to a non-heir is not objectionable and a valid will would be effected even without consent of the heirs of the deceased.
Reliance is made upon Abdul Haq and another v. Mst. Surrya' Begum and others (2002 SCM R 1330) (Supreme Court of Pakistan).
7. In this case petitioner's plea is that Nazir Ahmed testator bequeathed his total legacy in her favour. In the light of the above legal position it was incumbent upon the petitioner to prove a valid will in her favour. To discharge the burden of proof besides appearing herself in the witness box as P.W.1 she has produced Muhammad Din (P.W.2) a marginal witness of the alleged will deed (Exh.P1), Shaukat Ali (P.W.3), Rana Nazir Ahmed (P.W.4) and Sh.Ayyub Ali Advocate (P.W.5).
8. In her statement as P.W.1 the petitioner deposed that at the time of will Muhammad Din, Anayat and Shaukat were also present besides herself and Nazir Ahmed testator; that she herself, Muhammad Din, Anayat and Nazir Ahmed testator had impressed their thumb-impressions on will deed (Exh.P1). She has not mentioned presence of Abdul Hunain alias Hannan son of Sardar Ali as one of the witnesses at the time of pronouncement of will or execution of will decd (Exh.P1). In her statement she has also not mentioned that when the alleged will was pronounced by the testator.
She has also not deposed that when the impugned will deed (Exh.P1) was scribed.
9. Contrary to the above Muhammad Din (P.W.2) marginal witness of will deed (Exh.P1) has mentioned that Hunain was also present at the time of pronouncement of will by Nazir Ahmed testator. Shaukat Ali (P.W.3) real brother of the petitioner is marginal witness of the will deed (Exh.P1). In his statement he has mentioned about presence of Hunain at the time of pronouncement of the will. The said Hunain alias Hannan the second marginal witness of will deed (Exh.P1) is not produced by the petitioner as P.W. Rather he deposed from the respondent's side as DW-2. In his statement he categorically stated that Nazir Ahmed had never pronounced any will in favour of petitioner and that no will deed was executed by testator in his presence. Despite lengthy searching cross-examination petitioner could not shatter his statement and nothing material elicited in her favour. It is therefore obvious that pronouncement of alleged will or execution will deed (Exh.P1) is not sufficiently proved by the petitioner with the help of two reliable attesting witnesses as required under Articles 17 and 79 of the Qanun-e-Shahadat, 1984. The argument of learned counsel for the petitioner that Rana Nazir Ahmed stamp-vendor/scribe of will deed appeared in the witness box as P.W.4 has supported her version with regard to the execution of will deed (Exh.P1) and that his statement be treated as a witness to the will is devoid of any force.
10. It is established principle of law of evidence that when a particular person has signed a document as attesting witness he cannot be substituted with a scribe who has not signed the impugned document as an attesting witness. Reliance be made upon Hafiz Tassaduq Hussain v.
Muhammad Din through legal Heirs and others (PLD 2011 Supreme Court 241). The Hon'ble Apex Court in this cited case held that the scriber cannot be termed as attesting witness. The relevant extract is reproduced hereunder for ready reference:-- The command of the Article 79 is vividly discernible which elucidates that in order to prove an instrument which by law is required to be attested, it has to be proved by two attesting witnesses, if they are alive and otherwise are not incapacitated and are subject to the process of the Court and capable of giving evidence. The powerful expression "shall not be used as evidence" until the requisite number of attesting witnesses have been examined to prove its execution is couched in the negative, which depicts the clear and unquestionable intention of the legislature, barring and placing a complete prohibition for using in evidence any such document, which is either not attested as mandated by the law and/or if the required number of attesting witnesses are not produced to prove it. As the consequence of the failure in this behalf are provided by the Article itself, therefore, it is a mandatory provision of law and should be given due effect by the Courts in, letter and spirit. The provisions of this Article are most"8. uncompromising, so long as there is an attesting witness alive capable of giving evidence and subject to the process of the Court, no document which is required by law to be attested can be used in evidence until such witness has been called, the omission to call the requisite number of attesting witnesses is fatal to the admissibility of the document. See Sheikh Karimullah v. Gudar Koeri and others (AIR 1925 Allahabad 56). The purpose and object of the attestation of a document by a certain number of witnesses and its proof through them is also meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and for this the legislature in its wisdom has established a class of documents which are specific, inter alia, in Article 17 of the Order, 1989. (See Ram Samujh Singh v. Mst. Mainath Kuer and others (AIR 1925 Oudh 737). The resume of the above discussion leads us to an irresistible conclusion that for the validity of the instruments falling within Article 17 the attestation as required therein is absolute and imperative.
And for the purpose of proof of such a document, the attesting witnesses have to be compulsorily examined as per the requirement of Article 79, otherwise it shall not be considered and taken as proved and used in evidence. This is in line with the _ principle that where the law requires an act to be done in a particular manner, it has to be done in that way and not otherwise.
9. Coming to the proposition canvassed by the counsel for the appellant that a scribe of the document can be a substitute for the attesting witness; the point on which leave was also granted. It may be held that if such witness is allowed to be considered as the attesting witness it shall be against the very concept, the purpose, object and the mandatory command of the law highlighted above. The question, however, has been examined in catena of judgments and the answer is in the negative."
11. In the light of the above dictum of the Hon'ble Apex Court it is settled that in presence of two original, attesting witnesses of the document the scribe of the document cannot be treated as attesting witness. Therefore, in this case execution of impugned will deed (Exh.P1) is not proved on account of non-production of second attesting witness as required under Article 79 of the Qanun- e-Shahadat, 1984.
12. Besides above Sh. Ayyub Ali Advocate (P.W.5) who attested the will deed (Exh.P1) as Notary Public while facing the cross-examination categorically stated that Nazir Ahmed testator was not personally known to him. Rana Nazir, Ahmed (P.W.4) alleged vendor of the stamp paper on which Exh.P1 was scribed failed to produce any relevant register while appearing in the witness box. Will deed (Exh.P 1) was not scribed by him rather contents of the same are typed through computer composing. It is on the record that petitioner lodged her suit for declaration etc. On 9-9-2008.
Before institution of her suit, Mutation No,4703 dated 23-8-2008 pertaining to the inheritance of Nazir Ahmed deceased had been duly sanctioned by the Revenue Authorities in favour of Muhammad Shafi respondent. It is so disclosed by respondent in his written statement as well as in the plaint of his suit for permanent injunction. Petitioner did not bother to call in question the vires of the inheritance mutation by seeking amendment in her suit for declaration. The inheritance mutation of Nazir Ahmed deceased therefore still holds the field.
13. Careful reappraisal of the parties' evidence 'makes it crystal clear that petitioner has not been able to prove a valid will ever pronounced or executed by Nazir Ahmed testator in her favour, therefore, learned trial Court has rightly dismissed her suit vide impugned judgment and decree dated 3-3-2012 maintained by learned. Appellate Court through a well-reasoned judgment dated 14-5-2013. I do not find any misreading or non-reading of evidence, factual or legal infirmity or jurisdictional error in the concurrent findings of learned Courts below. Petitioner therefore has no case to invoke the revisional jurisdiction of this Court.