SHUJAAT ALI KHAN, J. Office has raised objections at serial Nos.3, 11, 22, 42 and 43 of the Objection Sheet.
2. At the outset, learned counsel for the petitioner, instead of contesting the objections at serial Nos.3, 11 and 22 of the 'Objection Sheet, seeks time to remove the same.
3. Insofar as objection at serial No.42 of the Objection Sheet is concerned, question regarding maintainability of the second Writ Petition is to be decided on judicial side.
4. Insofar as objection at serial No.43 of the Objection Sheet is concerned, learned counsel for the petitioner submits that since according to Article 95 of the Qanoon-e-Shahadat Order, 1984, a power of attorney duly notarized with a notary public is a valid document to give power in favour of another person to file/pursue proceedings before a court of law, thus, the Office Objection; under discussion, is not sustainable; that since CNIC of the petitioner has been blocked, he is unable to get attest the power of attorney from the Pakistan Embassy and that the petitioner wants to come back in order to pursue the proceedings pending against him but he has been left helpless on account of blockage of his CNIC. Relies on Sultan Samundar alias Samundar Khan through Legal Heirs v. Muhammad Bashir and 4 others (2015 MLD 378).
5. After hearing learned counsel for the petitioner and going through the documents, annexed with this petition, I have noted that mainstay of learned counsel for the petitioner is on Article 95 ibid which for convenience of reference is reproduced herein below: - "95. Presumption as to powers-of-attorney: The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a notary public, or any Court, Judge, Magistrate, Pakistan Consul or Vice-Consul, or representative of the Federal Government, was so executed and authenticated."
A perusal of the afore-quoted provision shows that Court can presume that a document purported to be power of attorney, executed and authenticated by a notary public, was so executed and authenticated. Insofar as case in hand is concerned, a cursory glance over the power of attorney/wakalatnama executed in favour of the learned counsel shows that it does not disclose that notary public authenticated appointment of Mr. Tahir Munir Malik Advocate as counsel to represent the petitioner before this Court rather only following stamp has been affixed thereon OSCAR R HERNANDEZ Notary Public - State of New Jersey My Commission Expires Jan 11, 2023 Fee.
While dealing with question regarding execution of power of attorney in a foreign country without authentication by the High Commission of Pakistan, the High Court of Sindh, in the case of Azra Saeed v. Raees Khan through General Attorney and 5 others (2009 CLD 779), has inter-alia observed as under:- "As is apparent from the contents of the plaint and the prayer made in it, plaintiff is seeking declaration of ownership of the said property on the basis of agreement to sell. Plaintiff also claim that the defendant No.2 has executed a sub general power of attorney dated 27-4-2006 in her favour. So far the question of power of attorney of defendant No.2, the same has been elaborately considered in the order dated 19-12-2008 passed in Suit No.589 of 2004, by which the plaint of said suit was rejected under Order VII, Rule 11, C.P.C. The relevant portion dealing with the said power of attorney in the said order is as follows:- "Another interesting aspect dealing with the bona fide of the transaction between plaintiff and defendant No.1 and having bearing on the cause of action is that the plaintiff claims to have entered into agreement to sell of the suit property with the attorney of defendant No. 1. The power of attorney, which has been filed with the plaint as annexure 'D' contains signatures of purported attorney namely Suhail Majeed Malik, which is altogether different from the one which appears on agreement to sell. Further, the signature of executants of power of attorney is not authenticated by High Commission of Pakistan at Dacca as is required by Article 95 of Qanun-e-Shahadat, inasmuch as the authentication that has been made is only in respect of signatures of Suhail Majeed Malik, the purported attorney, and not that of executant. The power of attorney on the basis of which the agreement to sell is said to have been signed has no presumption in its favour of its correctness nor on the face, the signature of attorney on the power of attorney and that on the agreement to sell at all tally or seem to be of one person."
Though the signatures of the attorney on the power of attorney and on the sub power of attorney appear to be the same but the very fact that power of attorney is not authenticated as per Article 95 of Qanun-e-Shahadat, no benefit can be given to the sub power of attorney."
Further, in the matter of Muhammad Maroof Ahsan v. Messrs Beach Developers through Partner (2011 MLD 36), question regarding execution of power of attorney in a foreign country- without authentication by the relevant authority has been dilated in the following manner:- "Before parting with the judgment it may be observed that no one appeared on behalf of the defendant. However, from the evidence on record it is evident that the defendant has no case and the absence on its part is an attempt to protract the proceedings. It has been come on record that all the partners of the defendant firm have gone abroad. The witness who appeared on behalf of the defendant as attorney of the partners of the defendant firm has admitted in his cross-examination that the Power of Attorney executed in his favour has not been attested by the Pakistan Embassy. It is mandatory requirement that a power of attorney executed in a foreign territory is to be attested by the Pakistan Embassy/Consulate in that country otherwise it has no evidentiary value. Reference in this regard may be made to the decision Muhammad Yaseen Siddiqui v. Tehseen Javaid Siddiqui reported as 2003 MLD 319. Therefore, can be safely said that there is no rebuttal to the case of the plaintiff. However, if the evidence adduced on behalf of the defendant is examined, even then no case is made out for dismissing the suit as all the relevant facts have been admitted by the witness of the defendant." (emphasis provided)
Moreover, Supreme Court of Azad Jammu and Kashmir, in the case of Executive Neelum Jhelum Project and another v. Azad Jammu and Kashmir Council Board of Revenue and others (2017 CLC 1519), while drawing line of distinction between mere execution and authentication of a document executed in the foreign country has inter-alia laid law to the following effect:- "It may also be observed here that authentication is not mere an attestation but it is something more. It means that the person authenticating has assured himself of the identity of the person who has signed the instrument as well as the fact of execution. In brief, it can be said that only a presumption is attached if power of attorney attested under the provisions of Article 95 of the Order, 1984. In absence of that, the proceedings initiated on the strength of any power of attorney would be nullity in the eye of law and the person who acts on the strength of that power of attorney can be said to be an unauthorized person. In Article 95 of the Qanun-e-Shahadat Order, 1984 the word "executed before" has appeared in section 33(1) of the Registration Act, 1908 and section 85 of Evidence Act which provides that power of attorney must be signed by the executant or his thumb-impression is affixed on it in presence of the relevant authority or at least its contents must be admitted to be true by the executant. The execution of power of attorney before the authority concerned and its authentication are two distinct acts and must be performed according to the provisions of section 33 of the Registration Act for their validity. The authentication of the power of attorney is not merely an attestation of power of attorney, rather it implies that the person authenticating must satisfy himself not only about the identity of the executant but also satisfy himself about the factum of execution as has been held by this Court in a case reported as Qurban Hussain and 2 others v. Hukam Dad [PLD 1984 SC (AJ&K) 157], that: "Authentication of the power-of-attorney is not merely an attestation of power-of-attorney, rather it implies that person authenticating must satisfy himself not only about the identity of the executant but also satisfy himself amount (sic) the factum of execution. We are fortified in our view by a case reported as Wali Muhammad Chaudhari and others v. Jamal Uddin Chaudhari wherein it has been held that authentication under section 85 of the Evidence Act is not merely attestation but means that the person authenticating has assured himself of the identity of the person who has signed the instrument as well as the fact of execution."
If the fate of the power of attorney executed in favour of the learned counsel is considered on the touchstone of the afore-referred judgments there leaves no ambiguity that the same does not qualify the test of authentication as set down under Article 95 ibid.
6. During arguments, learned counsel for the petitioner put much emphasis on the fact that since CNIC of the petitioner has been blocked, he is unable to travel to Pakistan. In this regard, I am of the view that even in cases where CNIC and Passport of a citizen of Pakistan are blocked, he/she can apply Pakistani Embassy in the said country for issuance of travel documents on emergent basis and said request cannot be declined, thus, said clog does not come to the rescue of the petitioner.
7. Now coming to the case-law, cited by learned counsel for the petitioner, I am of the view that the same is inapplicable to the facts and circumstances of the present case inasmuch as in the said case power of attorney was not attested in a foreign country rather the same was attested within the country.
8. For what has been discussed above, while over-ruling objection at serial No.42 of the Objection Sheet, leaving the question of maintainability of second Writ Petition to be determined on judicial