SM ATTIQUE SHAH, J. Petitioner through instant revision petition, has questioned the judgment and decree dated 15.07.2021 of the learned appeal court, whereby the appeal of respondent No.1 against the judgment and decree dated 30.01.2021 of the learned trial court decreeing the suit in favour of the petitioner-plaintiff, has been accepted resulting into non-suiting her.
2. Brief but relevant facts of the present case are that the petitioner-plaintiff (Petitioner) filed a suit for declaration, possession and perpetual mandatory injunction against the respondents- defendants (respondents) in the court of the learned Senior Civil Judge, Charsadda claiming the ownership of half of the share of the suit house by virtue of dower (fully described in the heading of the plaint) which was alleged to have been transferred by respondent No.1 in his name through fraud vide sale deeds dated 19.09.2005 and 12.12.2005 while affixing her fake signature thereon. The suit was contested by the respondents by filing their written statement sans respondent No.3 who submitted cognovit in favour of the petitioner by admitting her right being her husband. After recording pro and contra evidence of the parties, suit of the petitioner was decreed in her favour by the learned trial court vide judgment and decree dated 30.01.2021. The appeal preferred there against of respondent No.1 was however allowed by the learned appeal court vide judgment and decree dated 15.07.2021 while reversing the judgment and decree of the learned trial court. Hence, instant petition.
3. Heard. Record perused.
4. Case of the petitioner is that she is owner of the deputed house to the extent of its half share being her dower and Sale Deeds dated 19.09.2005 Ex.DW-1/1 and 12.12.2005 Ex.DW-1/2 in favour of respondent No.1 are illegal and; thus, ineffective upon her rights and therefore, are liable to be set aside. As against that, respondent No.1 being her brother-in-law, along with respondent No.2 contested the suit of the petitioner with zeal and zest through a written statement claiming therein ownership of the suit house through the ibid Sale Deeds dated 19.09.2005 and 12.12.2005 respectively allegedly executed in his favour by the petitioner, as such the controversy revolves around the ibid two deeds.
5. The petitioner, in order to substantiate her claim, appeared as a sole witness in the witness box.
In rebuttal, respondent No.1 produced as many as five witnesses i.e. Syed Muhammad Arshad, Deed Writer as DW-1, Abdur Rasheed, marginal witness of the subsequent Sale Deed dated 12.12.2005 as DW-2, Abbas Khan son of Fakher Alam Khan, the deceased marginal witness of the ibid deed as DW-3, Saeed Jan, the old tenant of the suit house as DW-4 while respondent No.1 Shah Faisal himself appeared as DW-5.
6. Sale Deed dated 19.09.2005 Ex.DW-1/1 reflects that the house in question had allegedly been transferred by the petitioner in favour of respondent No.1 in presence of the marginal witnesses upon receipt of partial payment of the sale consideration while Deed dated 12.12.2005 Ex.DW-1/2 shows receipt of the remaining sale consideration. Thus, in the given circumstances, deed dated 19.09.2005 can safely be termed as a basic document whereby the transaction of the sale between the parties was set in motion, which concluded upon the execution of the subsequent Deed dated 12.12.2005 Ex.DW-1/2 on the payment of the remaining amount.
7. Since the petitioner outrightly disputed the genuineness and execution of both the ibid Deeds, therefore, the burden of proof qua execution of the said deeds squarely lies upon the shoulders of respondent No.1 being beneficiary of such deeds. The evidence, so produced by respondent No.1 reflects that the initial Deed dated 19.09.2005 Ex.DW-1/1 was allegedly executed in the presence of marginal witnesses Muhammad Habib and; Imran Khan. However, none of the marginal witnesses were produced by respondent No.1 in support of his stance. Regarding proof of execution of a document, the production and; examination of two marginal/attesting witnesses of such document before the court is necessary in terms of Articles 17 (2)(a) and 79 of the Qanun-e- Shahadat Order, 1984 which has explicitly provided that "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 given evidence."
8. The language of the ibid provision of law manifestly reveals that in the event of proving the execution of a document, the beneficiary of such document is required to produce and; examine two attesting witnesses before the court in its support, if they are alive and capable of evidence.
However, in case of their death, the execution of such document can be proved by producing other admissible evidence. Meaning thereby, that the ibid provision of law is mandatory and; non- compliance thereof would render such document inadmissible in evidence, and in such circumstances, the same is liable to be excluded from consideration. Sana Ullah v. Muhammad Manzoor (PLD 1996 SC 256). No doubt, in the instant case, respondent No.1 has produced Syed Muhammad Arshad, Deed Writer (DW-1), who scribed both the ibid deeds, however, a scriber cannot be considered as a witness of a document viz-a-viz its marginal witnesses. Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others (PLD 2011 SC 241); Islam-ud-Din through L.Rs and others v. Mst. Noor Jahan through L.Rs and others (2016 SCMR 986); Sheikh Muhammad Muneer v. Mst. Feezan (PLD 2021 SC 538) and Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others (2022 SCMR 933).
It has been long settled that examination of marginal/attesting witnesses of a document is sine qua non qua its proof and admissibility in evidence notwithstanding its admission by the other side which is certainly not the case here. Mst. Rasheeda Begum and others v. Muhammad Yousaf and others (2002 SCMR 1089).
Under sub-Article (2) of Article 17 of Qanun-e-Shahadat Order, 1984, in the 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, and that such document cannot be used as a document until at least two attesting witnesses have been called for the purpose of proving its execution.
9. In the case in hand, astonishingly, none of the marginal witness of the Deed dated 19.09.2005 Ex.DW-1/1 was produced and; examined by respondent No.1 to substantiate his stance notwithstanding both the marginal witnesses were alive at the time of trial before the learned trial court per the testimony of respondents No.1. Even during hearing, time and again the learned counsel for respondent! No.1 was asked about the non-production of the marginal, witnesses despite being alive, but he could not advance any plausible reason for their non-examination in support of the disputed deed. The non-examination of the marginal witnesses would certainly hit by the mischief of the provision of Article 129 (g) of the Qanun-e-Shahadat Order, 1984, and as such an adverse inference would be drawn that had those witnesses been examined before the court they would not have supported the stance of respondent No. 1. Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044. When seen the case of respondent No.1 on the touchstone of Article 79 of the Qanun-e-Shahadat Order, 1984, this court has no hesitation in holding that the non- examination of the marginal witnesses of Deed - dated 19.09.2005 despite being alive, the said deed has automatically lost its worth and; therefore, the subsequent Deed dated 12.12.2005 has also crumbled down in the given circumstances notwithstanding both the Deeds do not contain the CNICs of the vendor and the vendee and even the subsequent Deed dated 12.12.2005 does not bear the signature of respondent No.1, which itself speak volumes qua its alleged execution. Being so, respondent No.1 could not prove his stance through cogent, reliable, and confidence-inspiring evidence and as such he failed to discharge the burden of proof in the peculiar circumstances of the case.
10. When examine in such backdrop, the learned trial court has rightly granted the decree in favour of the petitioner through well-reasoned findings while appreciating the record in its true perspective, which have wrongly been reversed by the learned appeal court through the impugned findings and, resultantly, while misconceiving the situation has fallen into a wrong conclusion, for which, interference of this court, in the present scenario, is imperative and also inevitable. The findings of the learned appeal court are the result of gross illegality and; material irregularity warrant reversal. Hence, this court is not hesitant in its mind to allow this petition while exercising revisional jurisdiction under section 115, C.P.C.
11. For the reasons discussed above, this court admits and allows this revision petition, set asides the impugned judgment and decree dated 15.07.2021 of the learned appeal court and in turn restores the judgment and decree dated 30.01.2021 of the learned trial court to its original position whereby the suit of the petitioner has been decreed. C.M is disposed of accordingly.