MUHAMMAD FAHEEM WALI J.- The petitioners through this Civil Revision Petition under Section 115 Code of Civil Procedure, 1908 have challenged the validity and legality of the judgment and decree dated 07.3.2018 passed by the learned Addl. District Judge-V, D.I.Khan who affirmed the findings/judgment dated 20.4.2013 passed by the learned Civil Judge-III, D.I.Khan and dismissed the appeal.
2. The facts, in brief, are that the petitioner/plaintiff filed a civil suit seeking therein that he is owner in possession of the suit land measuring 03K-10M situated in Mouza Rata Kulachi, D.I.Khan being purchased by him vide agreement to sell dated 30.9.2006, details whereof has been fully given in the plaint. After service of summon, defendant/respondent No. 1 appeared and contested the suit by filing written statement, whereas the defendant/respondent No. 2 filed cognovits in favour of petitioner/plaintiff. Learned trial court, after trial, passed a decree of possession to the extent of transfer of land measuring 10-Marla against the defendant No. 2 vide judgment dated 20.4.2023.
On appeal preferred by the petitioner, learned appeal Court dismissed the appeal vide judgment and decree dated 07.3.2018, hence this Revision Petition.
3. Arguments of learned counsel for the parties heard and record gone through carefully.
4. In view of arguments advanced at the bar by the learned counsel for the parties, this Court is to determine whether learned appeal Court has rightly opined that an agreement to sell (Ex.PW-2/2) is required by law to be attested by two attesting witnesses for the purpose of proving its execution.
The Court has minutely perused the judgments of both the Courts below and the material available on file and found that the plaintiff explicitly put faith in the subject suit on the basis of agreement to sell dated 30.9.2006, purportedly arrived at between the parties and as a consequence, the plaintiff has prayed for attestation of mutation/registration of deed in his favour on its strength. According to the sale agreement dated 30.9.2006, the suit land was sold out to the petitioner by the respondents/defendants. The appellant in his evidence has desperately failed to prove his stance by producing cogent, convincing and reliable evidence. He produced scribe Muhammad Iyaz and one marginal witness Fateh Sher as PW-2 and PW-4 of the subject deed, however, failed to examine second marginal witness thereof. The record reflects that no independent witness was examined by the petitioner who may endorsee the stance of the petitioner.
5. Article 79 of the Qanun-e-Shahadat Order 1984, is germane to the proof of execution of document required by law to be attested which cannot be used as evidence until "two attesting witnesses", at least, are 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. In fact this Article is reproduction of Section 68 of the Evidence Act, 1872 with the difference that, under it only one attesting witnesses was required to prove the document rather than two. The evidence recorded in the trial Court reflects that the appellant produced Fateh Sher son of Malik Gul Sher as attesting witness of the agreement to sell but another attesting witness Saif-ur-Rehman was not produced nor any justification or reason of not calling him was assigned. The omission or oversight of not calling the witness Saif-ur-Rehman attesting witnesses is detrimental and adversative to the admissibility of the document. The attestation and execution both have distinct characteristics. The execution of document attributes signing in presence of attesting witnesses including all requisite formalities which may be necessary to render the document valid. While the fundamental and elemental condition of valid attestation is that two or more witnesses signed the instrument/deed and each of them has signed the instruments in presence of the executants. This stringent condition mentioned in Article 79 is uncompromising. So long as the attesting witnesses are alive, capable of giving evidence and subject to the process of Court, no document can be used in evidence without the evidence of such attesting witnesses. The provision of this Article is mandatory and non-compliance will render the document inadmissible in evidence. If execution of a document is specifically denied, the best course is to call the attesting witnesses to prove the execution. When the evidence brought forward by a party to prove the execution of a document is contradictory or paradoxical to the claim lodged in the suit, or is inadmissible, such evidence would have no legal sanctity or weightage. In the case of Hafiz Tassaduq Hussain v. Aluhanzmad Din through Legal Heirs and others (PLD 2011 SC 241), the apex Court held in paragraph 8 that the command of the Article 79 of the Qanun-e-Shahadat Order, 1984 is vividly discernible which elucidates that in order to prove an instrument/deed 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 complete 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.
6. It was further held that the scribe of a document can only be a competent witness in terms of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 if he has fixed his signature as an attesting witness of the document and not otherwise; his signing the document in the capacity of a writer does not fulfill and meet the mandatory requirement of attestation by him separately, however, he may be examined by the concerned party for the corroboration of the evidence of the marginal witnesses, or in the eventuality those are conceived by Article 79 itself not as a substitute. In the case of Nazir Ahmad and another v. M. Muzaffar Hussain (2008 SCMR 1639), the apex Court held that: "Attesting witness was the one who had not only seen the document being executed by the executant but also signed same as a witness. Person who wrote or was 'scribe' of a document was as good a witness as anybody else, if he had signed the document as a witness. No legal inherent incompetency existed in the writer of a document to be an attesting witness to it". Whereas in the case of N. Kamalam and another v. Ayya samy and another (2001) Supreme Court cases 507}, it was held that: "Evidence of scribe could not displace statutomy requirement as he did not have necessary intent to attest." In Badri Prasad and another v. Abdul Karim and others (1913 (19) IC 451), it was held: "The evidence of the scribe of a mortgage deed, who signed the deed in the usual way without any intention of attesting it as a witness, is not sufficient to prove the deed."
7. The Trial Court and Appellate Court rightly held that the petitioner failed to prove the agreement to sell in terms of Article 79 of Qanun-e-Shahadat Order 1984. The High Court has a narrow and limited jurisdiction to interfere in the concurrent rulings arrived at by the courts below while exercising power under section 115, C.P.C. These powers have been entrusted and consigned to the High Court in order to secure effective exercise of its superintendence and visitorial powers of correction unhindered by technicalities which cannot be invoked against conclusion of law or fact which do not in any way affect the jurisdiction of the court but confined to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or the conclusion drawn therein is perverse or contrary to the law, but interference for the mere fact that the appraisal of evidence may suggest another view of the matter is not possible in revisional jurisdiction, therefore, the scope of the appellate and revisional jurisdiction must not be mixed up or bewildered. The interference in the revisional jurisdiction can be made only in the cases in which the order passed or a judgment rendered by a subordinate Court is found to be perverse or suffering from a jurisdictional error or the defect of misreading or non-reading of evidence and the conclusion drawn is contrary to law.
8. The concurrent findings of two courts below are neither based on any misreading or non- reading of evidence nor suffering from any illegality or material irregularity affecting the merits of the case. As a result of above discussion, the instant Civil Revision is dismissed with no order as to cost.