ABDUL HAMEED BALOCH J.---They petitioner/ plaintif f questioned judgments and decrees dated 29th August, 2017 and 08th February , 2018 (impugn ed judgments and decrees) passed by Senior Civil Judge, Pishin and District. Judge, Pishin (trial and appellate court), whereby the suit of the petitioner/plaintif f was dismissed and appeal against the same was also met with the same fate..
2. Concise facts of the case are that the petitioner/plaintif f filed a suit for declaration, cancellation of mutation and order dated 1 1 the December , 2010 passed by Deputy Commissioner Pishin and permanent injunction against the respondents/defendants in the court of Senior Civil Judge, Pishin in respect of cabin/khokha having khasra No. 757, measuring 35 sq. ft: situated at Band Road, Pishin, description whereof given in the plaint, with the prayer: a. Declaring that plaintif f is owner and in possession of cabin/ khokha measuring 35 sq: ft: under khasra No. 757, situated at Mahal and Mauza Pishin Tappa Saddar Surkhab, Tehsil and District Pishin since 1970, description whereof has been given in para No. 2 of the plaint: b. To declare the order passed by the D.C. Pishin/defendant No. 3 is null and void being passed without any authority and further mutation No. 1 sanctioned in pursuance of above older be also cancelled being illegal and unlawful; c. That defendants Nos. 2 and 4 be directed to issue Patta in the name of plaintif f by further mentioning it in revenue record; d. That permanent injunction be issued against the defendants restraining them from further transfer , alienate, sale, gift the cabin in question till disposal of the suit; Any other relief which this Hon'ble court may deem fit and appropriate in the circu mstances of the case may also be awarded in favour of plaintif f and against the defendants in the interest of justice. f. Cost of the suit may also be awarded.
3. The suit was contested by respondent/ defendant No. 1 on legal as well as factual grounds by filing written statement. The trial court out of the pleadings of the parties framed five issues on 7th April, 2011 and three additional issues on 21st October , 2014. The parties produced their respective evidence in pro and contra. Initially the trial court vide judgment and decree dated 30th December , 2015 dismissed the suit, against which the petitioner/plaintif f filed appeal, which was allowed and matter was remanded to the trial court. After remand the trial court vide judgment and decree dated 29th August, 2017 again dismissed. The petitioner/plaintif f being dissatisfied from the judgment and decree of the trial court filed appeal. The appellate court vide judgment and decree dated 08th February , 2018 also dismissed the appeal, hence this revision petition.
4. The learned counsel for the petitioner/ plaintif f contended that the judgments and decrees of the courts below are contrary to law and facts. The courts below have not discussed the statements of plaintif fs witnesses while deciding the issues. The eviction application filed by the respondent/defendant No. 1 was dismissed up-to Apex Court. The documentary evidence produced by the parties has not been discussed. The findings of the courts below are based on misreading and non-reading of evidence. The judgments of the courts below are based on surmises and conjectures which is not permissible unde r the law. The learned counsel placed reliance on case Mst. Alam Bibi v.
Kasb Bank 2020 CLC 1835 .
5. Conversely the learned counsel for the respondent/ defendant No. 1 vehemently opposed the contention of the petitioner/ plaintif f and stated that the judgments of the courts below are well reasoned and according to law. The burden of proof was on the petitioner/ plaintiff to prove his case on the strength of his own evidence. The petitioner/ plaintif f alleged that his father purchased the property from Muhammad Zarif but no evidence in regard of sale purchase of property was produced. The respondent/ defendant No. 1 is legal owner of the property . The learned counsel prayed for dismissal of the petition.
6. The learned Additional Advocate General representing the official respondents stated that the private parties have no concern with the suit land. The land is owned by respondent No. 2. The respondent No. 1 fraudulently mutated the land in his name in the revenue record. The official respondent has not provided opportunities to produce evidence. He prayed for remand of the case to the trial court.
7. Heard and perused the record. The record reveals that the petitioner/ plaintif f filed a suit for declaration, cancellation of mutation and order dated 11th December , 2010 passed by Deputy Commissioner Pishin and permanent injunction against the respondents/defendants before the trial court stating therein that initially in the year 1958 late Mullah Zarif filed an application to Assistant Commissioner for allotment of cabin. In pursuance thereof space for khokha/cabin was allowed to him on temporary basis. The father of plaintif f in the year 1970 purchased the property on payment. Mulla h Zarif died issueless in 1985. The defendant No. 1, who in fact is son of one Yar Muhammad, changed his parenta ge, obtained succession certificate from the court, received cash amount.
Whereafter; on order of Deputy Commissioner transferred the suit land from the name of Mullah Zarif to his name as recorded owner in the revenue record. The respondent/ defendant No. 1 filed written statement repudiated the contention of plaintif f and prayed for dismissal of the suit. After full-fledged trial the suit of the petitioner/plaintif f was dismissed vide judgment and decree dated 29th August, 2017 and appeal also met with the same fate vide judgment and decree dated 08th February , 2018.
8. The record transpires that initially the suit land was in the name of Political Agent Pishin. The authority on the basis of order No. 2376, in the year 1958, approved/sanctioned a piece of land for cabin. The revenue authority transferred the land from the name of Government to the name of Mullah Zarif in the record of right bearing khasra No. 757 measuring 357 square feet Mohal Bazar Fund Mouza Pishin, Tappa Saddar Surkhab. The respondent/defendant No. 1 submitted an application to Deputy Commissioner/Collector Pishin for transfer of the, land from the name of his father to his name in the revenue record. The Deputy Commissioner/Collector published and advertisement seeking objections. The petitioner/plaintif f filed objection. The Deputy Commissioner/ Collector vide order dated 11th December , 2010 ordered the revenue authority to transfer the inherited property to the name of respondent/defendant No. 1 and claim of the petitioner/plaintif f was rejected on the basis of above referred order .
The suit property was transferred in the name of respondent/defendant No. 1 bearing khewat/ khatooni No. 1/1.
The petitioner/plaintif f alleged that the suit property/ disputed property was purchased by the father of petitioner/plaintif f from Mullah Zarif, meaning thereby that the petitioner/plaintif f admitted the ownership of Mullah Zarif. Under Article 117 of Qanun-e-Shah adat Order 1984 (Order , 1984) the onus lies on the person who alleged the existence of certain facts. It would be appropriate to reproduce Article 1 17 of Order , 1984 as under: Article-1 1.7: Burden of proof. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
Article-1 19: Burden of proof as to particular fact. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."
9. Under the above referred Articles any person approached the court to seek its judgment upon existence of certain facts then he has to prove those facts. The Honorable Supreme Court of Pakistan in case of Noorani Travels, Karachi v . Muhammad Hanif, 2008 SCMR 1395 held: "----As per Article 119 of the Qanun-e-Shahadat Order , burden of proof as to any particular fact lies on that person who wishes to believe the Court in its existence unless it is provided by law that proof of that fact lies on another person.----"
10. Under Article 79 of the Order , 1984 the execution of document required to be attested. For proving the document two attesting witnesses shall be produced. It would be relevant to reproduce Article 79 of the Order , 1984 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 witnes ses alive, and subject to the process of the Court and capable of given 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 provisions 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."
11. Mere annexing document with the plaint does not ipso facto the proof of execution of document tendered in evidence without producing two attesting witnesses would not stand. For proving the document attesting witnesses have to be compulsory examined as per requirement of above referred to Article, otherwise such document is not to be taken as proved. The petitioner/ plaintif f was duty bound to prove the sale deed in case of denial by the respondent/ defendant. The petitioner/ plaintif f neither produced a single witness nor any reason thereof for non- production of attesting witnesses. Reliance is placed on case Hafiz Tassaduq Hussain v. Muhammad Din throu&h Legal Heirs PLD 201 1 SC 241 , wherein it was held: "8. 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 complet e 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 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 specified, inter alia, in Article 17 of the Order , 1984. ##T## (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."
12. Reliance is also placed on case Sheikh Muhammad Muneer v. Mst. Feezan PLD 2021 SC 538. It was held therein: "13. The learned Mr. Piracha says that prudence dictated that the petitioner should not produce or summon Muhammad Ali, who was an attesting witness, because he was the husband of the respondent and it was apprehended that he will deny witnessing his wife signing the said agreement. Merely because a witness is related to either party does not mean he/ she stops being a witness nor that he/she should not be produced/ summoned as a witness. The above quoted verse of the Holy Qur'an states that it is the religious duty of a Muslim to come forward to testify when called upon to do so. - 'The witnesses should not refuse when they are called on' (for evidence). An attesting witness remains a witness irrespective of his or her relationship to the parties to an agreement. If a witness does not agree to testify he/she can be summoned through the court. In the present case two attesting witnesses namely , Muhammad Ali and Muhammad Nawaz, were not produced nor compelled to give evidence by being summoned through the court.
14. As regards the scribe he was not shown or described as a witness in the said agreement, therefore, he could not categorize as an attesting witness. The cited verse of the Holy Qur'an mentions three times the word scribe (Katib) and five times the witness/es (Shahid) but does not use these words interchangeably , instead separately and distinctively . Therefore, a scribe and a witness cannot be the same. In Tassa duq Hussain v. Muhammad Din this Court considered Article 17 of the Qanun-e-Shahadat and held, that:
7. ---the provisions of Article 17(2)(a) encompasses in its scope two fold objects (i) regarding the validity of the instruments, meaning thereby , that if it is not attested by the required number of witnesses the instrument shall be invalid and therefore if not admitted by the executant or otherwise contested by him, it shall not be enforceable in law (ii) it is relatable to the proof of such instruments in terms of mandatory spirit of Article 79 of The Order , 1984 when it is read with the later. Because the said Article in very clear terms prescribes "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".
8. 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 complet e 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 consequences 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 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 specified, inter alia, in Article 17 of the Order , 1984. (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.
[emphasis has been added]
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 witnesses: the point on which leave was also granted. It may be held that if such witness is allowed to be considered as the attest ing witness it shall be against the very concept, the purpose, object and the mandatory command of the law highlighted above.
And, in an earlier case, Nazir Ahmed v . Muzaf far Hussain, was held that: Article 17 (2) (a) of the Qanun-e-Shahadat Order , 1984, provides that "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 ."
15. The petitioner presumably was not able to locate a witness (Allah Ditta). The burden to produce or summon him lay upon the petitioner , which is not alleviated merely by saying he could not be found. Article 80 of the Qanun-e- Shahadat provides, that: "80. Proof where non attesting witness found. If no such attesting witness can be found, it must be proved that the witnesses have either died or cannot be found and that the document was executed by the person who purports to have done so.
The Article states that it must be proved that the witness had either died or could not be found. Simply alleging that a witness cannot be found did not assuage the burden to locate and produce him. The petitioner did not lead evidence either to establish his death or disappearance, let alone seek permission to lead secondary evidence."
13. It is settled principle that burden of proof lies on plaintif f. The plaintif f is duty bound to prove his/their case on the strength of his/ their witnesses. The plaintif f cannot take benefit from the short coming of defendant's case.
Party seeking relief would have to discharge his burden. Such party has to stand on his own legs to succeed.
Reliance is placed on case Badar Zaman v . Sultan 1996 CLC 202 , wherein it was held: "----. It is well-settled law that the plaintif f must prove his case on the strength of his own evidence and cannot take advantage of the shortcomings of the defendant's case: Onus in this case heavily laid on the plaintif f which he has not been able to discharge satisfactorily , so the consequence would be that he must fail. There is a wellknown maxim 'dubio secundum reum potius quam secundum actorem litom dori opertert, which means that where the case is doubtful, the decision should be given for the defendant rather than for the plaintif f."
14. So far contention of petitioner that the respondent No. 1 is not son of Mullah Zarif. The record transpires that the respondent No. 1 obtained successio n certificate from the competent court of law i.e. Civil Judge-II, with the powers of District Judge, Quetta on 29th June, 1995. During proceeding of succession application none has filed objection. Even otherwise in all the testimonials of respondent No. 1 the father name mentioned as Mullah Zarif.
Even otherwise there is no case of plaintif f as such the objection in regard of parentage has no force.
15. The revisional power of this court is limited. The revisiona1 jurisdiction is directed against the irregular exercise of power or illegal assumption of jurisdiction. The High Court can interfere in concurrent findings of the courts below only when the findings of the courts below are based on misreading or non-reading of evidence or patently illegal or courts failed to exercise jurisdiction veste d in it or has assume jurisdiction not vested in it. Reliance is placed on case Moulvi Muhammad Azeem v . Alhaj Mehmood Khan Bangish 2010 SCMR 817 , wherein it was held: "---It is also settled principle of law that findings on the question of fact or law, however , erroneous the same may be, recorded by any Court of competent jurisdiction, cannot be interfered with by the High Court, in exercise of its revisional jurisdiction under section 115, C.P.C. unless such finding suffers 'from jurisdictional defect, illegality or material irregularity . With reference to section 115, C.P.C. the Privy Council has laid the following principle in N.S. Venkatagiri Ayyangar's case PLD 1949 PC 26 : "This section empowers the High Court to satisfy itself upon three matters:
(a) that the order of the subordinate Courts is within its jurisdiction;
(b) that the case is one in which the Court ought to exercise jurisdiction; and
(c) that in exercising jurisdiction the Court has not acted illegally , that is, in breach of some provision of law or with material irregularity , that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly , from the conclusions of the subordinate Court upon questions of fact or law ."
The case law relied by the learned counsel for the petitioner is distinguished.
In view of what has been discussed abov e the instant revision petition is dismissed being devoid of any merit and judgments and decrees dated 29th August, 2017 and 08th February , 2018 passed by Senior Civil Judge, Pishin and District Judge, Pishin respectively are upheld. No orders as to costs.