' Through this single judgment, this Court intends to dispose of titled revision petition as well as connected C.R.No. 1654 of 2010 arising of single judgment dated 19.7.2010 as common questions of law are involved in both the petitions.
2. Brief facts of the case are that Respondent No. 1 Mst. Hussan Baha filed a suit seeking declaration and possession of Plot No. 229 measuring 5 marlas situated in Sector L-I, Phase-III, Hayat Abad, Peshawar and also challenged the transfer deed Bearing No. 25592 dated 12.6.1999 in favour of present petitioner as bogus, fictitious and based on fraud and similarly, the further transfer executed by the present petitioner in favour of Mst.Sabeeha, Respondent No. 2 is of no consequence. Present petitioner and Respondent No. 2 contested the suit on the plea of bona fide purchasers and after the conclusion of the trial, vide judgment and decree dated 26.2.2010, the learned trial Court dismissed the suit. Feeling aggrieved, Mst. Hussan Baha Respondent No. 3 filed appeal, which was allowed vide impugned judgment and decree dated 19.7.2010. The petitioner filed the present C.R.No. 1571/2010 while Respondent No. 2 filed connected C.R.No. 1654/2010 against the judgment and decree passed by the Appellate Court.
Arguments heard and record perused.
3. The learned counsel for the petitioner mainly stressed on the sole point that the transfer deed on behalf of the Respondent No. 1/vendor was duly proved by producing cogent evidence and the learned Appellate Court failed to appreciate the same and same is the plea of Respondent No. 2, the petitioner of connected civil revision.
4. Record of the case reveals that the alleged transfer deed was witnessed by one Javed Iqbal, property dealer and Shakirullah (who happened to be step son of the transferor Mst.Hussan Baha).
It is noticed by this Court that neither Javed Iqbal. Nor Shakirullah were produced in the witness box as required under Provisions of Article 79 of Qanoon-e-Shahadat, 1984. Both the attesting witnesses are alive and no reason was shown, to withhold these two important witnesses. This was requirement of law and failure of it was inadmissibility in evidence of the said document. Reliance may be placed on 2009 SCM R 623 and PLD 1996 SC 256.
5. One Muhammad Aslam was produced by the present petitioner as D.W.3. This witness when appeared in witness box categorically stated that at the time of finalization of the sale in his office, the said Mst.Hussan Baha was not present with Shakirullah. He further stated that at the time of transfer, the consideration was not paid to Mst. Hussan Baha but was paid to Shakirullah. Similarly, he stated that he does not know personally the lady accompanied by Shakirullah and was not confirmed that any other lady was produced at the time of transfer. Similarly, the present petitioner when appeared in witness box, categorically stated that Respondent No. 1, transferor was not personally known to him.
6. It is an admitted fact that Respondent No. 1 is an illiterate and 'Parda Nasheen' lady. It is well settled that the burden of proof, in respect of document purportedly to have executed by an illiterate 'Parda Nasheen' woman affecting her right or interest in the immoveable property, is on the beneficiary of document. It is for him to establish affirmly that it was substantially understood by the lady and it was really her free and intelligent act. It is also well settled that if the lady is illiterate, it must have been read over to her in her native language so that she must be able to understand what has been mentioned in the document. There is plethora of judgments on this point from way back the Marina Virana's case reported in (AIR 1931 Privy Council) and Mukhtar Ahmad's case reported in (1925 PC 204), as well as the recent judgments of Apex Court reported in Khawas Khan's case reported in (2004 SCM R 1259) and Abdul Hameed's case reported in (2008 SCMR 140). Reliance can also safely be placed on Jannat Bibi's case, reported in (PLD 1990 SC 642).
7. Since the present petitioner badly failed to prove his case, so he was not in a better position to further transfer the same to the Mst.Sabiha Respondent No. 2 (the petitioner of connected C.R.No. 1654 of 2010) as she steps into shoes of the present petitioner. The petitioner also failed to prove the consideration received by Respondent No. 1 as discussed above. He was bound to produce the marginal witnesses of transfer deed as well as in whose presence allegedly the consideration was paid to petitioner. The most important witnesses of deed of transfer were withheld for no reason or explanation which by itself is sufficient to disbelieve the claim of petitioner.
8. The present petitioner failed to prove his case through cogent, reliable and trustworthy evidence.
The judgment passed by the learned Appellate Court is well reasoned and the result of pain taken by thrashing material available on the record which cannot be lightly taken under the revisional jurisdiction of this Court. No legal or factual infirmity has been found in the judgment of learned Appellate Court.
' Under the circumstances, both the petitions are devoid of any merits. Resultantly, this petition as well as connected petition bearing C.R. No. 1654/2010 are hereby dismissed.