ABDUL HAMEED BALOCH, J. Through this Civil Revision Petition the petitioners have prayed as under: "In the light of foregoing submissions, it is, therefore most respectfully prayed that the Impugned judgment and decree dated 12.02.2021 passed by the learned Additional District Judge, Gwadar, may kindly be set aside and the judgment and decree of the learned trial court may kindly be resorted."
2. Briefly stated facts are that the plaintiff/petitioner filed a suit for declaration of transfer of PDS No.392 Measuring 1000 sq yard, plot No.01 Line P5-A Street No.P Phase 01 PDS Gwadar ownership of plaintiff prayed as under: "It is therefore, prayed to this Hon'ble Court to may kindly please to allow this plaint and decree the suit in favour of plaintiff against the defendant to transfer the PDS No.392 Measuring 1000 sq yard situated at Sangar Housing Scheme Tehsil and District Gwadar in name of plaintiff as owner. Any other relief which this Hon'ble Court deems fit may kindly be awarded to the plaintiff in the interest of justice and fair play. It is prayed accordingly."
3. The defendants Nos. 3 to 9 filed written statement controverted the contention of the plaintiff raised legal as well factual objection prayed for dismissal of suit. The trial court framed issues. The parties led evidence. On conclusion of trial, the trial court vide judgment and decree dated 06th April, 2019 decreed the suit of plaintiff. The private defendants have assailed the impugned judgment and decree of the trial court before the Additional District Judge Gwadar (appellate Court), which was accepted vide judgment and decree dated 12th February, 2021 by setting aside the judgment and decree of the trial court. Hence this petition with the prayer as mentioned above.
4. Heard. Perused the record. The plaintiff/petitioner claimed the ownership of the plot in question through purchase. The plaintiff stated that he purchased the plot in question through broker paid full payment to the seller Abdul Abbas (father of defendants Nos. 2 to 8) and in this regard sale deed was also prepared in the presence of witnesses. The record reveals that neither the date, month and year of the alleged sale nor the value of the plot in question is mentioned in the plaint.
Even in the alleged sale deed the sale purchase price of the plot is mentioned. It is settled preposition of law that the sale deed should be proved by the two attesting witnesses. It would be relevant to reproduce Article 79 of the Qanun-e-Shahadat Order, 1984 as under:
79. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses of 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.
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
5. When a document is required by law to be attested would not be used in evidence unless two attesting witnesses giving evidence to prove its execution. Article 17 of the Qanun-e-Shahadat Order, 1984 deals with the competency and number of witness. Articles 17 and 79 require compulsory attestation of two witness of a document if a document is required by law to be attested, it shall not be used as evidence unless two attesting witnesses are called for the purpose of proving its execution. The conjoint reading of above two articles makes it clear that it is essential for the plaintiff to have examined at least two witnesses of the sale deed. It is the duty of beneficiary of a document to prove the execution of document by convincing evidence. The beneficiary of the document is required to prove the contents of the contents of the witnesses. The beneficiary is under obligation to prove that the attesting witnesses are not alive or nor found despite hectic efforts, mere stating that the attesting witnesses are not alive is not sufficient.
Reference can be made to the case of Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain 2022 SCMR 933, whereby it has been observed as under:
2. Article 79 of the Qanun-e-Shahadat Order, 1984, (Section 68 of the Evidence Act, 1872) 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 his brother PW Khaliq Dino as attesting witness of the agreement to sell but another attesting witness Hashim son of Allah Warrayo Behrani was not produced nor any justification or reason of not calling him was assigned. The PW Muhammad Umar the vendor, only identified the parties whereas the Ex. 69/J does not bear the signature of PW Zaheer Ahmed Abro. The omission or oversight of not calling both the 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 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. Muhammad Din through Legal Heirs and others (PLD 2011 SC 241), the 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 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. 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 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 (Emphasis supplied) 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) 7 Supreme Court cases 507), it was held that: "Evidence of scribe could not displace statutory 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."
6. The record transpires that the plaintiff neither produced any evidence regarding death of witnesses. None of the plaintiff's witnesses stated that the sale consideration/payment was made in their presence. Mere alleging that the plaintiff had purchased the property cannot absolve the plaintiffs from its duty to prove the document as required under Article 79 of the Qunun-e- Shahadat Order, 1984. Reliance is placed on the case of Hafiz Tassaduq Hussain v. Muhammad Din Through Legal Heirs PLD 2011 SC 241, whereby it has been observed as under:
8. The command of the Article 79 is vividly discernible which elucidates that in order to prove an instrument 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 consequence 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. See Sheikh Karimullah v. Gudar Koeri and others (AIR 1925 Allahabad 56). The purpose and object of the attestation of a document by a certain number of witnesses and its proof through them is also meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and for this the legislature in its wisdom has established a class of documents which are specified, inter alia, in Article 17 of the Order, 1984. (See Ram Samujh Singh v. Mst. Mainath Kuer and others (AIR 1925 Oudh 737). The resume of the above discussion leads us to an irresistible conclusion that for the validity of the instruments falling within Article 17 the attestation as required therein is absolute and imperative. And for the purpose of proof of such a document, the attesting witnesses have to be compulsorily examined as per the requirement of Article 79, otherwise, it shall not be considered and taken as proved and used in evidence. This is in line with the principle that where the law requires an act to be done in a particular manner, it has to be done in that way and not otherwise.
Reference may also be made to the reported case of this court title Muhammad Yousaf Khan v.
Haji Barat 2018 MLD 904.
7. No doubt the plaintiff is duty bound to prove his case on the strength of his own evidence. Under Article 117 of the Qanun-e-Shahadat Order, 1984 the burden of proof lies on person who desires the court to give decision in his favor. The plaintiff must prove the case on its own leg he cannot take benefit from the weakness of defendant's side. In this regard reliance is placed on the case of Nasir Ali v. Muhammad Asghar 2022 SCMR 1054, whereby it has been observed as under: "6. According to the Article 117 of the Qanun-e-Shahadat Order, 1984, if any person desires a court to give judgment as to any legal right or liability, depending on the existence of facts which he asserts, he must prove that those facts exist and burden of proof lies on him. The terminology and turn of phrase "burden of proof" entails the burden of substanding a case. The meaning of "onus probandi" is that if no evidence is produced by the party on whom the burden is cast, then such issue must be found against him. The burden of proof for the deceitful transaction rests normally on the person who impeaches it. In a suit for declaration alleging that the sale was fictitious, the onus is on the plaintiff to prove the same. Where the evidence of plaintiff was self contradictory and not confidence inspiring then he must fail and where the case is doubtful, the decision must be given in favour of defendant rather than the plaintiff It is a well settled exposition of law that the plaintiff must succeed on the strength of his own case rather than the weakness of the defendant. The lawsuits are determined on preponderance or weighing the scale of probabilities in which Court has to see which party has succeeded to prove his case and discharge the onus proof which can be scrutinized as a whole together with the contradictions, discrepancies or dearth of proof It is the burdensome duty of the Court to detach the truth from the falsehood and endeavor should be made in terms of the well-known metaphor, "separate the grain from the chaff" which connotes and obligates the Court to scrutinize and evaluate the evidence recorded in the lis judiciously and cautiously in order to stand apart the falsehood from the truth and judge the quality and not the quantity of evidence.
8. Under the provisions of section 42 of the Specific Relief Act a person entitled to any legal character or to any right to property can institute a suit for declaratory relief in respect of his title to such legal character or right to property. The expression, legal character has been understood to be synonymous with the expression status. A suit for mere declaration is not permissible except in the circumstances mentioned in section 42 of the Specific Relief Act. The proviso attached to this Section clarifies that no Court shall make any declaration where the plaintiff being able to seek further relief than mere declaration of title, omits to do so. Whereas under section 39 of the Specific Relief Act, any person against whom a written instrument is void or voidable, who has "reasonable apprehension that such instrument, if left outstanding, could cause him serious injury, may sue to have it adjudged void or voidable and the Court may, in its discretion, so adjudge it to be delivered up and cancelled. In the case in hand, the plaint reflects that the plaintiff/respondent brought the lawsuit only for declaration and at the same time alleged that he is in possession of the property in question, while in the written statement the petitioner categorically stated that he purchased the property against consideration, mutation was also effected in his favour and he is enjoying the possession. As indicated in the plaint, the respondent was allegedly in possession, which raiser the question why application was moved for adding a relief of possession. Nothing was alleged regarding how he went out of possession and if it was done, whether any remedy available under the law was availed including filing of complaint under the Illegal Dispossession Act. The possession of the petitioner was proved in the Trial Court and there was nothing on record to show that during pendency of the suit the petitioner secured the possession of the suit property. Section 42 of Specific Relief Act expressly permits the plaintiff to ask for further relief but neither relief of possession was claimed nor the cancellation of mutation document as a consequential relief. Hence, mere suit for declaration without claiming the consequential relief of possession and cancellation of mutation entry was otherwise not maintainable. A consequential relief means a substantial remedy in accordance with the decree of declaration, if prayed for.
Mere declaration of title cannot be sought without asking for possession as consequential relief, but in this case relief for cancellation of mutation entry was also very significant which the plaintiff omitted to apply for. The claim of mere declaration as to alleged title does not suffice.
Consequential relief denotes the relief which is an essential outcome to the declaratory relief prayed for. The plaintiff is not permitted to seek a mere declaration without consequential relief when it is necessary to the full and complete enjoyment of the property. The object of this condition is to avoid the multiplicity of suits and litigation. In the case of Secretary to Government (West Pakistan) now N.W.F.P. Department of Agriculture and Forests, Peshawar and 4 others v.
Kazi Abdul Kafil (PLD 1978 SC 242), this Court held that it is a common knowledge that a suit for the grant of a declaratory decree is filed under section 42 of the Specific Relief Act, 1877. However, one of the mandatory requirements of the said section is that if in a suit filed thereunder the plaintiff ought to have prayed for the grant of consequential relief but had failed to do so, then the suit filed by him would be incompetent. In the matter of Ali Muhammad and another v.
Muhammad Bashir and another (2012 SCMR 930), this court held that the appellants have not sought cancellation of registered instruments in terms of Section 39 of the Specific Relief Act in the suit nor direction of their ejectment in suits have been sought. When confronted with this situation, the learned counsel for the appellants could not offer any plausible explanation except that he contended that the appellants had the right to file a separate suit for possession. Even this argument is without substance. The law does not permit a second suit if a right to the plaintiff is available at the time of filing of the suit. A second suit in such like situation is otherwise barred under Rule 2, Order II, C.P.C. In the case of Dr. Faqir Muhammad v. Maj Amir Muhammad and others (1982 SCMR 1178), this Court held that under section 42 of the Specific Relief Act the petitioner was required to ask for all other reliefs, which were opened to him. The relevant prayer for consequential relief in the present case, as rightly pointed out by the learned High Court Judge, would have been for specific performance of the agreement. But the petitioner had not asked for it. Whereas in the case of Khalid Hussain and others v. Nazir Ahmad and others (2021 SCMR 1986), this Court considered the crucial feature determining which remedy the aggrieved person is to adopt. In case of a voidable document, for instance, where the document is admitted to have been executed by the executant, but is challenged for his consent having been obtained by coercion, fraud, misrepresentation, or undue influence, then the person aggrieved only has the remedy of instituting a suit for cancellation of that document under section 39 of the Act of 1877 and a suit for declaration regarding the said document under section 42 is not maintainable."
8. It appeared from the record that the plaintiff failed to prove the execution of document through evidence, mere placing the deed on record does not established that documents have been exhibited.
In view of above, the petition being devoid of merits is dismissed.