' This regular second appeal is directed against the judgment and decree dated 01.02.2008 passed by the learned appellate Court whereby the appeal filed by the respondent was accepted and judgment and decree dated 24.02.2005 was set aside.
2.The predecessor of the appellants instituted a suit for declaration contending therein, that he is the owner of the suit property and the gift deed made by the respondents is product of fraud and misrepresentation as the respondents by playing fraud got his thumb impression on blank papers on the pretext to obtain a tractor but subsequently it was made a gift and by this way usurped the suit land owned by him. Lastly prayed that the Gift Deed No, 129 dated 10.04.1999 be declared illegal/unlawful, product of fraud and misrepresentation.
3.The respondents who are legal heirs of the predeceased son of the predecessor of the appellants appeared before the learned trial Court, controverted the averment of the plaint on the ground, that the suit land, after the death of their father was transferred in their names in the presence of witnesses, the gift deed is registered one and no fraud has been committed.
4. The learned trial Court framed necessary issues out of the controversial pleadings of the parties, recorded the evidence and finally decreed the suit, against which an appeal was filed by the respondents, which was allowed and the suit filed by the appellants was dismissed. Hence this Civil revision.
5.Learned counsel for the appellants has mainly questioned the propriety and validity of the judgment and decree passed by the learned appellate Court on the ground that the respondents in order to prove the alleged gift deed, allegedly executed by the predecessor of the appellants produced only one marginal/attesting witness and by this way has failed to prove the gift deed (Ex.D-4) as required by Article 79 of Qanun-e-Shahadat Order, 1984. Learned counsel in support of his arguments has referred the findings recorded by the learned appellate Court in Para-11 of the judgment impugned herein. Reliance is placed Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187), Farid Bakhsh v. Jind Wadaa and others (2015 SCM R 1044) and Muhammad Abaidullah v. Ljaz Ahmed (2015 SCM R 394).
6. When it was confronted to the learned counsel appearing on behalf of the purchaser of 24-Kanal out of the total land (Respondent No, 13), the learned counsel submitted, that although the second attesting witness could not be produced by the respondents but the respondents produced the scribe and Sub-Registrar, therefore, the scribe is in fact the substitute of the attesting witness.
Reliance is placed upon (2013 SCMR 1351).
' Respondents No, 1 and 4 to 12 have already been proceeded against ex-parte.
7.Heard. Record perused.
8. It is not denied as evident from record of the case, the predecessor of the appellants namely Suleman was the owner of the suit land. To prove this fact the predecessor of the appellants himself appeared in the witness-box and proved his title through reliable documentary evidence and denied the execution of any gift deed in favour of the respondents. As regards the gift deed, allegedly made by the predecessor of the appellants, the respondents were required by law to prove the same in accordance with the terms of Article 79 of the Qanun-e-Shahadat Order, 1984. It is mandatory requirement of law as enunciated, that to prove a document at least the evidence of two marginal/ attesting witnesses is required. For ready reference, Article 79 of the Qanun-e- Shahadat Order, 1984 is reproduced as under: "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."
' Admittedly, the respondents could not produce the second attesting witness despite the fact, the alleged executant had denied the execution of the same, therefore, the document (Ex-D-4) is not admissible in evidence. I am afraid the arguments advanced by the learned counsel for the respondents that the scribe of the gift deed can be substituted for an attesting witness, has any substance or force in view of the law laid down by the Hon'ble Supreme Court of Pakistan in a recent esteemed judgment cited as Farzand AU and another v. Khuda Bakhsh and others (PLD 2015 SC 187) and Farid Bakhsh v. Jind Wadda and others (2015 SCM R 1044). In this judgment the Hon'ble Supreme Court of Pakistan has also interpreted Articles 17(2) and 79 of the Qanun-e-Shahadat Order, 1984. The relevant part of the esteemed judgment (PLD 2015 SC 187-Supra) thereof is reproduced as under:- "10. Considering the proposition if the agreement of the appellants was required to be proved by the examination of two attesting witnesses, it is settled law that an agreement to sell an immovable property squarely falls within the purview of the provisions of Article 17(2) of the Qanun- e-Shahadat Order, 1984 and has to be compulsorily attested by the two witnesses and this is sine qua non for the validity of the agreement. For the purposes of proof of such agreement' it is mandatory that two attesting must be examined by the party to the lis as per Article 79 of the Order ibid. In this case, the respondent had unequivocally denied the execution of the said agreement and it is on account of the above that Issue No, 11 was also framed requiring, the appellants to prove their agreement; the appellants never objected to the issue or sought to get it struck off; thus for all intents and purposes they accepted the responsibility of proving the same, despit the fact that according to their stance now the said agreement was admitted by the vendors in their written statement. However, the appellants for this purpose produced P.W.1 who is the scribe of the document, but admittedly is not the attesting witness and in number of judgments of this Court it has been clearly held, that a scribe of an agreement to sell immovable property is not a substitute for an attesting witness, and does not legally qualify to be so, therefore, his evidence may have a supportive value, but is neither in line with the mandate of law nor does it meet the test of Article 79 ibid. The only attesting witness examined by the appellants id D.W.2, namely, Muhammad Hanif, whereas the other attesting Witness, Aftab has not been examined, and no explanation has been given by the appellants for this vital omission which was essential for proving their agreement to sell. This is fatal to the case of the appellants as per the law laid down in Hafiz Tassaduq Hussain v. Muhammad din through Legal Heirs and others (PLD 2011 SC 241). The repeated argument to overcome this legal impediment is that the vendors have accepted and acknowledged the agreement to sell in the written statement; in this context the constant answer is that an admission of a co-defendant is not binding upon the other co-defendant and as the respondent had denied the agreement to sell of the appellants and issue was also framed, therefore, the appellants were duty bound to prove the same in terms of the law enunciated in the judgment (supra) and Article 79 ibid."
9. The record further revealed, that the respondents who were bound to prove the gift deed (Ex.D- 4) in terms of Article 79 of the Qanun-e-Shahadat Order, 1984, could not offer any explanation that why the other attesting witness was not produced, therefore, by this way the respondents intentionally and deliberately withheld the evidence and failed to meet with the test of aforesaid Article.
10. Learned appellate Court, who was hearing the first appeal, should have carefully perused, examined and appreciated the record instead of taking the matter, wherein the valuable rights of the parties are involved, leisurely. The learned appellate Court in a very novel way dealt with the mandatory requirement of Article 79 of the Qanun-eShahadat Order, 1984. It is necessary to reproduce the relevant finding recorded by the learned appellate Court while accepting the appeal of the respondents, which is as under: "Thus, it is clear that evidence produced on record by the defendants (respondents) is sufficient and confidence inspiring that Hibba-Deed (Ex-D-4) is a genuine document. After placing the evidence of the plaintiff and defendants-appellants (respondents) in juxtaposition, it would appear that evidence produced by the defendants has ring of truth. So far as the argument of learned counsel for the respondents that Iqbal Hussain marginal witness has been produced but other marginal witness Muhammad Hussain has not been produced so the document Ex.D-4 does not stand proved in accordance with law as at-least two witnesses should have been produced to prove it and in this view of the matter Hibba-Deed has no legal sanctity, is concerned, the evidence is silent as to why Muhammad Hussain has not been produced as witness. Non production of this witness appears to be due to the fact that legal assistance of the lawyers at Mufasil Courts is not proper and some-times very important documents or piece of evidence does not come on the record due to professional incompetence. Same situation appears to be here. It would have been much better if Muhammad Hussain marginal witness of Ex.D.4 had also appeared. However, it is understandable that Muhammad Hussain had not come forward to deny the execution of this document. The genuineness of the Hiba-deed stands proved from the mouth of Sub-Registrar and the other witnesses. Mere on the basis of technicalities, the justice cannot be frustrated."
11. The aforesaid findings recorded by the learned appellate Court are not only violative of the mandatory command of the law but also against the canon of fairness and justice. Courts are required to dispense the justice in accordance with law and it has wrongly been observed by the learned appellate Court that non-producing the two attesting witnesses is a technicality. This type of the observation, in the presence of the mandatory provisions of the statute and the principle laid down by the Hon'ble Supreme Court of Pakistan should not remain in the field. Perhaps, it appears, that the learned Judge has not even bothered to consult the basic law and what about the law declared by the Hon'ble Supreme Court of Pakistan. In these circumstances, the afore-referred findings record by learned appellate Court are liable to be set aside.
12. There is another aspect of the case that the predecessor of the appellants, even admitted by the respondent side, was an illiterate person of advance age, who himself appeared and denied the execution B of the gift deed stated, that the respondents got his thumb impression on blank papers, on the pretext to purchase a tractor. Respondent No, 1 who appeared as DW-3, during cross-examination almost admitted the stance taken by the predecessor of the appellants. The same is as under:- {{URDU TEXT}}
13. It appears from the record, that in fact the respondents took the benefit of the illiteracy and simpleness of the predecessor of the appellants and succeeded to transfer the whole land in their name. Although it is noticed in many cases, that the daughters or sisters are being denied and deprived form their right of inheritance and this practice has constantly been deprecated by the Courts, but in this case, the predecessor of the petitioners/real father himself filed the suit for cancellation of the gift deed alleged to have been executed by him in favour of the respondents.
Therefore, it appears that the predecessor of the parties to the case had no intention to deprive the petitioners (real daughters) from their right of inheritance which is secured and guaranteed by the Allah Almighty. Thus, the gift deed of the suit land claimed to have been executed by the predecessor of the petitioners in favour of the respondents is product of fraud and misrepresentation and is nullity in the eye of law.
14. Resultantly, this second appeal is allowed, the judgment and decree passed by the learned appellate Court is set aside and that of the learned trial Court is upheld. No order as to cost.