' MALIK MANZOOR HUSSAIN, revision petition has been preferred against judgment dated 29-9- 2012,passed by learned Addi: District Judge-XIII, Peshawar, whereby appeal filed by petitioner was dismissed and judgment and decree dated 3-7-2009, passed by learned trial Court, was maintained.
2. Briefly, the facts of the case are that respondent No,1 Mst.Zubeda Begum filed a suit for declaration, permanent injunction and mandatory injunction against the petitioner and respondents Nos.2 and 3. The suit was contested by the petitioner and after recording pro and contra evidence, the suit of respondent No,1 was decreed through judgment dated 3-7-2009. The petitioner preferred an appeal and also filed application for production of additional evidence, however, through judgment dated 26-1-2010, the appeal was dismissed. Feeling dissatisfied the petitioner preferred Civil Revision No,452-P/2010, before this Court, which was allowed vide order dated 30-5-2011 and case was remanded back to the learned appellate Court for deciding the appeal as well as application for additional evidence afresh. After remand the learned appellate Court accepted the application of petitioner for production of additional evidence, through order dated 18-2-2012, and after recording additional evidence, the learned appellate Court dismissed the appeal through impugned judgment dated 29-9-2012.
3. Learned counsel for petitioner contended that the signatures on the gift deed have not been disputed by respondent No,1/plaintiff, therefore, both the learned Courts below erred in law while holding that it was the duty of petitioner/defendant to prove the execution of gift deed. It was further argued that marginal witnesses Abdul Rauf Rohaila Advocate and Imran Masood Durrani were produced before Court in order to prove the document in accordance with Articles 17 and 79 of Qanun-e-Shahadat Order, 1984, besides production of Moharrir, Sub-Registrar. Lastly it was contended with vehemence that respondents/plaintiffs admitted her signature on Power of Attorney dated 3-4-2003 and same was the date of registered gift deed bearing No,961, which was attested on the same date, therefore, the learned Courts below failed to notice this admitted fact, which otherwise was not needed to be proved by petitioner.
4. Conversely, learned counsel appearing on behalf of respondents contended that the deed was not attested by two marginal witnesses as required under Article 79 of Qanun-e-Shahadat Order, 1984 and the alleged gift deed does not contain the signature of second witness. It was further argued that in the written statement the stance of petitioner was that gift was made due to love and affection but during Court statement not a single word has been uttered from the mouth of petitioner/defendant about this fact. It was further argued that petitioner was a Parda Nasheen old lady and no close relative or her family member was associated while executing the gift deed rather one witness was husband/attorney of petitioner and the deed was scribed by one Abdur Rauf Rohaila Advocate, who was admittedly counsel of petitioner, having no relation with respondent lady. It was lastly argued that the witness, husband of petitioner was beneficiary being expected legal heir of petitioner, thus he cannot be termed as attesting witness. It was also argued that the alleged Power of Attorney dated 3-4-2003, was not exhibited during trial.
' Arguments heard and with the valuable assistance of learned counsel for the parties, record perused.
5. Perusal of record reveals that respondent Mst. Zubaida Begum is widow of a martyred Army Officer. In recognition of the service of her husband, the petitioner was allotted a plot at Defence Colony Khyber Road, Peshawar and a house was built by respondents. There was no male issue of respondent, however she got three daughters including the petitioner. The only source of income of respondent was in the shape of rent of house in dispute.
6. The moot issue in the case is that whether the alleged gift deed was validly executed by respondent No,1 in favour of petitioner. On perusal of gift deed dated 21-3-2003, it reveals that the same has been drafted by Abdur Rauf Rohaila Advocate and one witness of the same is husband of petitioner namely Imran Masood Durrani while for the second witness place is shown vacant.
Neither name of witness exists, nor signature of anyone exists on the deed. Similarly when the document was presented for attestation before Sub-Registrar on 3-4-2003, in the order available on page 45 of this petition, the name of Imran Masood and his signature appears as witness No,1 while the name of Mr.Abdur Rauf Rohaila Advocate is handwritten as second witness but there is no signature of Mr. Abdur Rauf Rohaila Advocate as an attesting witness. This Court has notice with pain that unfortunately the same Mr.Abdur Rauf Rohaila, who was scribe of the deed, drafted written statement in the main suit and conducted the case on behalf of petitioner. Similarly when the case was decreed the appeal was drafted by Barrister Adnan Saboor Rohaila son of Mr. Abdur Rauf Rohaila Advocate, who was then associate of Mr.Abdur Rauf Rohaila and lastly Mr.Abdur Rauf Rohaila appeared as witness of petitioner as AW.1. Even otherwise, Mr. Abdur Rauf Rohaila Advocate admitted that he was scribe of deed and was not attesting witness and when he was confronted with the deed, he admitted that name of second witness was not scribed at the time of execution of deed and was left blank. Similarly his signature did not exist as attesting witness. Requirement of marginal witness is sine qua non under Article 79 of Qanun-eShahadat Order, 1984 as the marginal witnesses of a document are produced not merely to identify the signature of executant but are examined to also prove that the executant had put the signatures within their view. In absence of second marginal witness, the requirement as ordained under Article 79 of Qanun-e-Shahadat, 1984, was not fulfilled.
7. Admittedly the respondent is an old lady and there was no reason for her to deprive her of the sole source of her income and livelihood. Besides this, there was no reason for respondent No,1 to deprive the other two daughters and disinherit them from her sole legacy. The position would have been different when the deed was challenged after death of donor i,e, respondent No,l. The deed has been challenged by the donor being a forged document. No circumstance was brought on record to indicate that relation of respondent No,1 was strained with other two daughters, which forced the respondent No,1 to execute gift deed in favour of petitioner. Besides this the three ingredients of gift were also lacking. It is admitted on record that one Major Muhammad Javed is occupying the premises on rent on behalf of respondent No,l. The said Major Muhammad Javed appeared in Court as PW.1 and admitted the fact of payment of rent to respondent No,1 till date, meaning thereby that the possession was never transferred to the petitioner. The petitioner being the beneficiary was required to prove the document through cogent and reliable evidence, which she failed to do the same. Both the learned Courts below have properly appreciated the material available on record in true sense and by applying correct law, passed well reasoned judgment, which do not need any interference.
In view of what has been observed above, this petition being devoid of any force is dismissed with cost.