1. CHAUDHARY KHALID RASHEED, J. The captioned appeal has been filed against the judgment and decree passed by the learned Additional District Judge Muzaffarabad dated 18.09.2020, whereby, suit filed by respondent herein for specific performance of contract and cancellation of gift deed dated 24.09.2007 has been decreed.
2. Brief facts forming the background of the instant appeal are, respondents herein filed a suit for specific performance of the contract dated 21.06.2003 and 22.12.2004 and cancellation of gift deed dated 24.09.2007 along with perpetual injunction against appellant herein in the Court of Additional District Judge, Muzaffarabad wherein it was submitted that land comprising survey No.:08 measuring 10 marla was allotted to Abrar Hussain son of Qammar Ali and after his death proprietary rights were transferred to his real son vide mutation No.205 to the extent of 5 marla land. It was submitted that Abrar Hussain agreed to sell one marla land along with constructed shop thereupon for the consideration of Rs.2.20,000/- out of which Rs.75,000/- were received by him and vide agreement to sell dated 21.06.2003 handed ever possession of the land along with shop to the plaintiff. It was contended that thereafter Abrar Hussain also received the remaining consideration amount Rs.1,45,000/- and handed down agreement to sell dated 22.12.2004. It was stated that as the proprietary rights were not transferred to Abrar Hussair due to which sale deed could not be executed, thereafter, defendant obtained fake and forged gift deed from Abrar Hussain when he was at deathbed, thus the gift deed dated 24.09.2007 and mutation No.262 attested on the basis of said gift deed are liable to be set aside.
3. The suit was contested by the defendant by filing written statement wherein it was submitted that agreements to sell dated 21.06.2003 and 22.12.2004 are fake and forged. It was contended that at the time of execution of said agreements, Abrar Hussain was not the owner of the land and land was transferred to him on 24.04.2005. It was further contended that Abrar Hussain has transferred his land in favour of defendant vide gift deed dated 24.09.2007 and mutation No.262 has also been attested in favour of defendant on 31.10.2007, thus the suit is liable to be dismissed.
4. The learned trial Court framed issues in the light of pleadings of parties, provided them opportunity to lead evidence, and at the conclusion of proceedings decreed the suit vide impugned judgment and decree dated 18.09.2020, hence the captioned appeal.
5. The learned counsel for the appellants mainly pressed into service that plaintiffs/respondents failed to prove the execution of agreements dated 21.06.2003 and 22.12.2004 as was required under Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 because he failed to produce two attesting witnesses of the agreements, thus the spit was liable to be dismissed but the Court below failed to ponder this important aspect of the case and illegally decreed the suit by observing that the plaintiffs/respondents have proved the execution of agreements to sell. The learned Advocate in support of his submissions placed reliance on PLD 2015 SC 187 and 2017 CLC 70.
6. The learned counsel for the other side supported the impugned judgment on all counts and submitted that as one of attesting witness of the agreements had died and his statement recorded in earlier suit which was decreed ex-parte has been made part of the file in accordance with law, therefore, the Court below rightly observed that execution of agreements to sell is proved.
7. I have heard the learned counsel for the parties and gone through the record of the case with due care and caution.
8. The competence and number of witnesses required to prove a document is provided under Article 17 of the Qanun-e-Shahadat Order, 1984 which for proper appreciation is reproduced as under:
17. Competence and number of witness.---(1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah.
(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law, a) in matters pertaining to financial or future obligation, 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; and
(b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant."
9. In the instant case, under agreements to sell certain amount was stated to have been paid and the executant of the agreements was supposed to deliver possession of the land along with shop to the plaintiff, therefore the agreements were in respect of matters pertaining to financial or future obligations in terms of Article 17(2)(a) of Qanun-e-Shahadat Order, 1984 and required that such agreements to be attested by two men or one man and two women so that one may remind the other. For proving a document Article 17(1) of Qanun-e-Shahadat Order, 1984 postulates that competence of a person to testify and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah.
10. The Holy Quran requires that the number of witnesses should be not less than two men or a man and two women. In the case in hand the plaintiffs/ respondents to prove their claim produced Naveed Hussain, the marginal witness of the agreements who deposed that agreements to sell were written and signed in his presence and he also verified his signature on the said agreements.
11. The plaintiffs also produced Senior Civil Judge Muzaffarabad who attested the agreements. He also verified his signatures on the agreements to sell. Patwari concerned produced by the plaintiffs deposed in his statement that as per revenue record, Shahid Aziz is in possession of suit land since 2004 to 2015. Plaintiff also recorded his own statement in support of his claim. The plaintiff also produced Muhammad Zaman Sulehria, the petition writer who deposed that agreement to sell Exh.PA was handed down by him in accordance with the consent and deposition of both the parties. He further deposed that signatures and thumb impressions of Abrar Hussain Exh.PA/2 were obtained by him. An attesting witness is one who not only witnessed a document being executed but also signed it as a witness. A person who writes or scribes a document is as good witness as anybody else, if he had signed the document as a witness. Where in addition to one of the marginal witnesses scribe of the document appears in the trial Court and deposes that agreement was scribed by him and thumb impressions and signatures were put by the defendant such statement of the writer can be considered to a statement of marginal witness in the circumstances of the case. Reliance in this regard can be placed on 2008 SCMR 1639. As the petition writer Muhammad Zaman Sulehria stated in his statement that he wrote agreement to sell and signatures and thumb impressions of Abrar Hussain executant were put in his presence, hence he can be considered as an attesting witness of the agreement to sell because as mentioned above, the attesting witness is the one who has observed a document being executed and also signed the same as a witness. I am alive of the fact that normally scribe of an agreement to sell was not a substitute for an attesting witness and did not legally qualify to be so therefore, his evidence may have a supportive value but neither in line with the mandate of law nor did it meet the test of Article 79 of Qanun-e-Shahadat Order, 1984 but in the instant case, the scribe deposed that executant put his signatures and thumb impressions in his presence, thus the scribe of the document is also an attesting witness, hence the requirement of Article 17 of Qanun-e-Shahadat Order, 1984 is fulfilled.
12. Under Article 79 of the Qanun-e-Shahadat Order, 1984 an agreement to sell being instrument pertaining to financial or future obligation would not be used in evidence unless at least two attesting witnesses were examined for such purpose provided that they were alive and capable of evidence. For beneficiary of an agreement to sell is mandatory to produce two attesting witnesses to prove the execution of the agreement, however, the producing two attesting witnesses is subject to the condition that they are alive and capable of giving evidence. In the case in hand, the learned counsel for the plaintiffs/respondents took a stance that one of marginal witnesses of agreement namely Kala Khan had died due to which he could not be produced as witness, however, perusal of record reveals that the statement of Kala Khan the other marginal witness of agreement to sell was recorded on 09.09.2006 in the court in suit filed by plaintiffs/respondents which was decreed ex- parte and Kala Khan verified his signature and also deposed that Abrar Hussain was agreed to sell the land along with shop to plaintiff and had received consideration amount. This statement of Kala Khan has been made part of the file of the trial Court, thus, in my considered view, the plaintiff succeeded to prove the execution of agreement to sell dated 22.12.2004, hence the observations recorded by the trial Court are quite in accordance with law and do not require any indulgence by this Court.
13. The sum and substance of the above discussion is that, finding no essence the instant appeal is hereby dismissed.