Dr. Khurshid Iqbal, J.
1. The appeal in hand is directed against the order/judgment of the learned District Judge/Zilla Qazi, Malakand at Batkhela, passed on 23.09.2020. By the said order, an objection petition of the respondents No. 2 to 4 (Qasim Ali Shah, Safdar Ali Shah and Ibrar Ali Shah) was accepted to the effect that a certain house was given by respondent No.1 (Mehar Shah) to Mst. Musarrat Begum, his late wife, as dower, vide a deed dated 03.04.2013.
2. The appellant filed a suit under Order XXXVII, C.P.C., against the respondent No.l. The suit was for the recovery of R .3,902,500/- on the basis a cheque No. B.A 0794603 of 25.04.2015 of the National Bank of Pakistan, Thana Branch of District Malakand. The suit was decreed vide judgment dated 12.05.2018. The respondent No.1 preferred an appeal, which this Court dismissed on 25.10.2018.
3. The appellant/decree-holder filed an execution petition against the respondent No.1/ judgment- debtor, in which, he filed an application for auction of a house owned and possessed by the respondent No.1. In the execution proceedings, the respondents No.2 to 5 filed an objection petition to the effect that their father (the respondent No.1) has transferred the house in question to his wife Mst. Musarat Begum (their mother) vide dower deed referred to above. Their mother passed away and they, being her legal heirs, became owners of the said house. The appellant contested the aforesaid objection petition. He submitted his written reply. Pro and contra evidence was recorded.
After hearing learned counsel for both the parties, the trial Court accepted the objection petition, holding that the house was given as dower by the respondent No.1 to his wife.
4. Arguments of learned counsel for the parties heard and record gone through.
5. Admittedly, the respondent No.1 executed an agreement with the appellant on 18.03.2015, wherein he offered the disputed house to him in lieu of the outstanding amount on his part in respect whereof he gave him a post-dated Bank cheque to him. In the aforesaid agreement, the respondent No.1 declared that the house in question was free from all encumbrances including most notably, dower. In this view of the matter, the contention of the respondents No.2 to 4 that the house in question was given by the respondent No.1 to their mother as her gift on the strength of a deed dated 03.04.2013, is open to question. In their objection petition, the respondents No.2 to 4 examined Muhammad Fayaz and Zahoor Muhammad (PWs-1 and 2), as marginal witnesses of the dower deed dated 03.04.2013. Although, they both have furnished evidence of the fact that they are the marginal witnesses of the gift deed, but it is abundantly clear from their evidence that the respondent No.1 is aged about 60/70 years and it does not stand to reason that he transferred the house in question to his wife in lieu of dower after a long time of his marriage. PW1 admitted that all the respondents (father/the judgment debtor and sons) are still living jointly in the same house.
PW2 was asked as to when the respondent No.1 married to his wife Mst. Musarat Begum, he could not recollect and rather stated that it was long ago. He even further elaborated that dower of the wife of respondent No.1 was fixed as 12/13 tola gold ornaments regarding which a document was also executed. He admitted that there is no mention of the aforesaid dower of gold ornaments in the dower deed. PW1 could not recollect as to who else signed the dower deed as its marginal witness.
6. The respondents did not produce the stamp vendor and the scribe of the dower deed. Copy of an extract from the register of the stamp vendor was produced, which reflects the dower deed at serial # 35. The extract shows that on 03.04.2013, the date on which the dower deed was written, as many as seven stamp papers were sold and all were numbered. There is over writing/tempering on serial # 35, 36 and 40 in column No.2, with no initial thereon. It is crystal clear that the serial # 35, at which the stamp for the dower deed was shown, is tampered and distorted. Astonishingly, after serial # 35, the next deed is given serial # 40 followed by serial # 36 for a third one and then serial # 37. The stamp vendor was not produced who could have offered explanation for the apparent tampering in the serial numbers. Similarly, the scribe of the deed was also not produced. Moreover, copy of the deed available on the record does not show the number, the date of issuance and the person to whom it was issued. The peculiarity of the circumstances of the case is that the house in question has been reported as the ownership of the respondent No.1, who as a judgment-debtor in execution proceedings for satisfaction of the decree of Rs.39,00,000/-. The objectors (respondents No.2 to 4) are the sons of respondent No.1. It was their burden to prove the dower deed. They failed to discharge their burden. In peculiar circumstances of the case, the mere fact that two marginal witnesses of the deed are not sufficient. If the house in question was given in lieu of dower in the year 2013, the respondent No.1 would not have mentioned it in the agreement deed dated 18.03.2015. What was required to have been proved was that the transaction of dower has actually taken place. Arguments of learned counsel for the respondents that the decree is against the respondent No.1 and that the same is still intact is not tenable in the circumstance of the case. It appears that the respondents No.2 and 4 (objectors) have connived and colluded with the respondent No.1 (judgment-debtor/ their father) in order to deprive the appellant from the fruits of the decree passed in his favour.
7. Coming to the legal status of the dower deed in question, it is worth noting; firstly, that dower is in the nature of debt not a charge. In the instant case, by mentioning the house in question in the agreement deed dated 18.03.2015 in-fact, showed it as a charge towards the satisfaction of debt against him; secondly, the very transaction and for that matter the contents of the dower deed were not proved. In the case of Abdul Aziz v. Abdul Hameed (Deceased) through L.Rs. (2022 SCMR 842), the Apex Court has observed: "Moreover, with respect to the proof of "contents of document" Article 72 of Qanun -e-Shahadat Order, 1984 provides that contents of documents may be proved either by primary or secondary evidence. The best evidence about the contents of a document is, therefore, the document itself and it is the production of the document that is required by law in proof of its content.
"Muhammad Nawaz v. Ahmad Bibi" (1995 SCMR 466)".
Another relevant case is that of Mst. Rabivaz Bibi v. Matiur Rehman and others (2022 CLC 686)
[Peshawar (Bannu Bench)]. In this case, the proof of contents of a document was discussed as under: "Suffice it to observe that exhibition of a document is one thing and its proof, as prescribed by law, is another thing. Moreover, exhibition of a document does not mean that it stands proved, rather the party relying upon such document, is supposed to prove the same in accordance with law and procedure provided in Qanun-e-Shahadat Order, 1984. The philosophy of exhibition and admission of document which are not one and the same, as in the former a document is tendered in evidence whereas in the latter it requires to be proved in accordance with the principle of Qanun-e -Shahadat or rule of evidence. Exhibition is something else being a process led to the proof of a document. Mere exhibition of a document was not tantamount to an admission of a document or proof thereof irrespective of the fact that a document was exhibited and that too without objection, the same is required to be proved.
8. In addition to above, any document filed by either party passes through three stages before it is held proved or disproved. First stage: when the document is filed by either party in the Court; this document though on file, do not become part of the judicial record; Second stage: when the document is tendered or produced in evidence by a party and the Court admits the documents in evidence. A document admitted in evidence becomes a part of the judicial record of the case and constitutes evidence. Third stage: the documents which are held 'proved, not proved or disproved' when the Court is called upon to apply its judicial mind by reference to Qanun-e- Shahadat Order, 1984. Therefore, without proof of Ex:PW1/1 no reliance can be placed on it.
Reference may be made to 1998 MLD 1592 and PLD 1993 SC 160.
8. As sequel to the above reappraisal of evidence, the instant appeal succeeds, which stands allowed. Consequently, the impugned order/judgment dated 23.09.2020 passed by the learned District Judge/ Zilla Qazi, Malakand, is set aside.