MUHAMMAD AMEER BHA TTI, J.--- Judgments and decrees dated 07.12120 09 and 12.03.2010 passed by both the learned Courts below , whereby suit and appeal of the petitioners were concurrently dismissed, have been called-in-question by virtue of this revision petition.
2. At the very outset, learned counsel for the respondents paints-out that the petitioners have failed to prove the factum of agreement to sell purportedly executed in their favour , as they had not fulfilled the mandatory requirement of law as envisaged under Article 79 of Qanun-e-Shahadat Order , 1984, which necessitates production of two marginal witnesses, whereas in the case in-hand, the petitioners produced one marginal witness and there is no plausible explanation for non-production of other marginal witness, hence the result of the suit was obvious. In the ultimate, the. learned Courts below considering this deficiency in evidence fatal to suit, hence rightly dismissed suit and appeal of the petitioners. Reliance is placed on Farid Bakhsh v. Jind Wadda and others (2015 SCMR 1044 ) wherein Hon'ble Supreme Court held as under , "There is no denying the fact that a deed witnessing an agreement to sell being a document involving financial obligation has to be proved, in accordance with the requirements of Article 79 of the Qanun-e-Shahadat Order .
What are its requirements for proving a document of this type can well be known by reading it which runs as under: -- "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 specially denied."
This Article is clear and unambiguous words provides that a document required to be attested shall not' be used as evidence unless two attesting witnesses at least have been called for the purpose of proving its execution. The words shall not be used as evidence" unmistakably show that such document shall be proved in such and no other manner . The words "two attesting witnesses at least" further show that calling two attesting witnesses for the purpose of proving its execution is a bare minimum. Nothing short of two attesting witnesses if alive and capable of giving evidence can even be imagined for proving its execution. Construing the requirement of the Article as being procedural rather than substantive and equating the testimony of a Scribe with that of an attesting witness would, not only defeat the letter and spirit of the Article but reduce the whole exercise of re-enacting it to a farce. We, thus, have no doubt in our mind that this Article being mandatory has to be construed and complied with as such".
3. Learned counsel for the petitioners, when confronted, has candidly conceded that .although the second marginal witness/attesting witness had not been produced but the evidence of Scribe could be considered as good as attesting witness of the document, therefore, this deficiency has been cured/made up by producing the Scribe and the same may be taken into consideration. I am afraid, the evidence of the Scribe in a suit for specific performance of agreement to sell cannot be considered substitute of attesting witness. The Hon'ble Supreme Court in the judgment referred ibid has further laid down the law in the following terms in this regard:--- "Another reason for not equating the testimony of a Scribe with that of an attesti ng witness is that both of them signed the document in a different capacity and with a different state of mind: They, as such, do not meet the requirements of Article 79 of the Qanun-e-Shahadat Order . Scribe, however , could be examined by the party for corroboration of the evidence of the attesting witnesses but not as a substitute therefor".
4. Another aspect of the case was also considered by Hon'ble Supreme Court in the judgment referred supra regarding admission of document without any objection in following terms:--- "The argument that no fault can be found with a document at the later stage when it was admitted in evidence without any objection is ornamental rather than legal as the counsel cross-examining the witness producing and exhibiting the document, cannot foresee or anticipate that the other attesting witness is not going to be called".
5. In view of the above discussion, I am not inclined to interfere with concurrent judgments of the learned-Courts below which are in consonance with the, provisions of law on the subject as well as ratio laid down by the Hon'ble Supreme Court, hence this petition having no merit stands dismissed with no order as to costs.