MUHAMMAD IJAZ KHANS J.- Through this Civil Revision Petition, petitioners have challenged the judgment and decree of the learned Additional District Judge-III, Mardan dated 28.01.2017, whereby the appeal filed by the respondent / defendant was allowed and that of the judgment and decree of the learned Senior Civil Judge, Mardan dated 19.07.2014 was set aside, who vide the same had decreed the suit of petitioners / plaintiffs.
2. Precisely, the facts leading to the filing of this petition are that both the parties are siblings inter- se and they are the legal heirs of one Bahadar Khan.. The respondents/plaintiffs, Muqarab Khan and five others (sons and daughters of late Haji Bahadur Khan) filed a suit against the respondent/defendant, Muhammad Javed Khan (who is also a son of Haji Bahadur Khan) for declaration, possession, recovery of improvement costs and permanent injunction. The suit plot was originally in the name of their deceased father and claimed to be jointly owned and possessed by the plaintiffs. They have averred in the plaint that the respondent / defendant in connivance with MDA staff, fraudulently transferred the plot in his name as a gift through a forged document dated 23.05.2007. The respondents / plaintiffs also sought cancellation of the transfer deed dated 28.05.2007, correction of record in their favor, for possession, and issuance of restraining orders to prevent the defendant from alienating or interfering with the plot. The aforesaid suit was duly contested by the respondent / defendant No.1 by filing his written statement. In view of the divergent pleadings of the parties, the learned trial court framed as many as nine (09) issues and the parties were directed to produce their respective evidence which they have accordingly led and ultimately the learned trial court vide judgment and decree dated 19.07.2014, decreed the suit in favour of petitioners / plaintiffs and against the respondent / defendant. The aforesaid judgment and decree was then challenged by the present respondent / defendant before the learned Additional District Judge-III, Mardan, which was allowed and judgment and decree of the learned trial court dated 19.07.2014 was set aside. Being aggrieved of the same, the petitioners have now filed the instant civil revision.
3. Arguments of learned counsel for the petitioners were heard in considerable detail and record perused with his able assistance.
4. The record would show that both the parties are siblings inter-se and they are the legal heirs of one Bahadar Khan. It is the case of petitioners / plaintiffs that they are siblings inter-se and are the legal heirs of Haji Bahadar Khan and that the suit plot is the part of the legacy of their father and as such the gift deed dated 23.05.2007 and then its transfer dated 28.05.2023 in the record of Mardan Development Authority (MDA) with respect to the suit plot in favour of the respondent / defendant Muhammad Javaid Khan is fake, fictitious and thus ineffective upon the rights of the petitioners / plaintiffs, whereas as against this, the stance of respondent / defendant is that the said instruments of transfer are legally correct and have validly been entered and executed.
5. In an inheritance case, what a plaintiff (s) is required to prove two facts i.e. (i) their relationship with the common predecessor or with the defendant, and (ii) that the suit property being part of legacy, the aforesaid two facts have not been denied by the respondent / defendant, therefore, to this extent, they have successfully been discharged their burden of proof
6. As against this, the plea of the respondent / defendant was that the suit plot has been gifted by his father, however, neither in his written statement nor in his court statement he has uttered a single word regarding the "incident" of gift that as to when, where and in whose presence their father had declared his intention to gift the subject plot in his favour by excluding his other children.
Similarly, he has not uttered a single word that his father offered the said plot to him as a gift and he thereafter accepted the said offer and then possession was also handed over to him, therefore, in the given facts and circumstances of the case, respondent./ defendant has miserably failed to prove the very essential ingredients of a valid gift.
7. Similarly, it is also the case of respondent / defendant that the suit plot was given to him by his father vide gift deed dated 23.05.2007 which was exhibited as Ex.PW 1/D1 which was later on also incorporated in the record of Mardan Development Authority vide transfer instrument dated 28.05.2007 which was exhibited as Ex.PW 1/D2, however, he has not been able to prove these two documents in line with legal requirement of Article 17 read with Article 79 of the Qanun-e-Shahadat Order, 1984 which provides that any document which requires by law to be attested must be attested by two attesting witnesses and then those witnesses have to be produced in support of the same, however, in the present case though the gift deed dated 23.05.2007 (Ex.PW 1/D1) is signed by two witnesses namely, Imtiaz Khan and Fayaz Khan, however, none of them have been produced by the respondent / defendant in support of the said deed, therefore, only confronting PW-1 namely, Muqarab Khan with the aforesaid deed in his cross-examination and exhibiting the same from him would not be sufficient for the proof of the same. It would also not be out of place to mention here that during the trial an application was submitted by the respondent I defendant for production of these two witnesses which application was also allowed, however, despite that respondent I defendant could not produce them in support of his plea.
8. Likewise, the respondent I defendant has also not been able to prove the transfer deed 23.05.2007 Ex.PW 1/D1. The said deed shows that it has been signed by the marginal witnesses alongwith the official of Mardan Development Authority but none of them have been produced before the Court to show that it was the predecessor of the parties namely, Bahadar Khan who had approached the said Authority (MDA) for the transfer of the suit plot to respondent / defendant, therefore, this document too has not been proved as per the required standard of proof. The jurisprudence so far developed qua the execution of a document as per Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 is consistent to the effect that any document require by law to be attested especially those involving financial or future obligations cannot be used as evidence unless it is attested by at least two attesting witnesses and those witnesses are then produced in Court to prove the execution of document. In a case[1], the Apex Court held that as regards the scribe he was not shown or described as a witness in the said agreement, therefore, he could not be categorised as an attesting witness. The cited verse of the Holy Qur'an mentions three times the word scribe (katib) and five times the witness/es (shahid) but does not use these words interchangeably, instead separately and distinctively. Therefore, a scribe and a witness cannot be the same. In Tassaduq Hussain v Muhammad Din this Court considered Article 17 of the Qanun-e- Shahadat and held, that:- 7.... the provisions of Article 17(2)(a) encompasses in its scope twofold objects (i) regarding the validity of the instruments, meaning thereby, that if it is not attested by the required number of witnesses the instrument shall be invalid and therefore if not admitted by the executant or otherwise contested by him, it shall not be enforceable in law (ii) it is relatable to the proof of such instruments in term of mandatory spirit of Article 79 of The Order, 1984 when it is read with the later. Because the said Article in very clear terms prescribes "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 giving evidence ".18
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 witness, 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. ... 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.19 Similarly, in another case[2] the Apex Court held that the deed witnessing the agreement appears to have been signed by two attesting witnesses but appellant examined only one. He to cover up the lapse, in the first instance, sought to construe the requirements of Article 79 as being procedural rather than substantive, and then sought to equate the testimony of the Scribe with that of an attesting witness. But we cannot appreciate any of these arguments unless we know the nature of the document and requirements of law for proving it. It was also observed in the judgment that there is no denying the fact that a deed witnessing an agreement to sell being a document involving financial obligation has to be proved in accordance with the requirements of Article 79 of the Qanun-e-Shahadat Order. What are its requirements for proving a document of this type can well be known by reading it which runs as under:- "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 giving 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 provision 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 "
This Article in clear and unambiguous words not be used as evidence unless two attesting witnesses at least have been called for the purpose of proving its execution. The words "shall not be used as evidence" unmistakably show that such document shall be proved in such and no other manner. The words "two attesting witnesses at least" further show that calling two attesting witnesses for the purpose of proving its execution is a bare minimum. Nothing short of two attesting witnesses if alive and capable of giving evidence can even be imagined for proving its execution. Construing the requirement of the Article as being procedural rather than substantive would not only defeat the letter and spirit of the Article but reduce the whole exercise of re- enacting it to a farce. The appellant failing to call the attesting witness failed to prove the deed in accordance with the requirements of law. Such failure, in the absence of any plausible explanation, would also give rise to an adverse presumption against the appellant under Article 129(g) of the Order. In the case of Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs (PLD 2011 SC 241), the Apex Court after defining the meanings of the word "attesting" in the light of Black's Law Dictionary and other classical books and case law held that a document shall not be considered, taken as proved or used in evidence, if not proved in accordance with the requirements of Article 79 of the Order. This aspect was also highlighted in the case of Hafiz Tassaduq Hussain v.
Muhammad Din through Legal Heirs (supra) in the paragraph which reads as under: - "To the same effect are the judgments reported as Qasim Ali v. Khadim Hussain through legal representatives and others (PLD 2005 Lahore 654) and Shamu Patter v. Abdul Nadir Rowthan and others (1912 (16) IC 250). Therefore, in my considered view a 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 fulfil 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".
Further reliance in this regard may also be placed on the judgments[3].
8. As far as the possession of the suit plot is concerned, both the parties are having their rival claims and it is the case of respondent / defendant that it was he who constructed the said plot and then the same has been rented to one Noor Muhammad but surprisingly neither he has produced any Mason or Laborer or Engineer in support of his plea of construction nor he has produced any rent deed with the said Noor Muhammad nor he has produced the said Noor Muhammad in support of his this plea, therefore, respondent / defendant has also not been able to prove his possession on the suit plot. Even otherwise, since both the parties are co-sharer from a common predecessor, therefore, even possession of co-sharer will not be considered as an adverse factor against the other co-sharer as it is established since long that every co-sharer is in possession of every inch of a joint property unless and until the same is officially partitioned.
10. Another astonishing aspect of this case is that the respondent / defendant has not bothered to personally appear before the Court in support of the alleged gift, which is otherwise a personal act, rather he deemed it appropriate to produce his father-in-law in support of his plea of gift but notably he during the cross examination has admitted that respondent / defendant become his son-in-law in the year 2011, whereas all the events in this case had taken place much before 2011 i.e. in year 2007, therefore, at that point of time the presence of the attorney of the respondent /defendant is I was out of question.
11. As far as the findings recorded by the learned Appeal Court that it was for the petitioners / plaintiffs to prove that the said transactions / deeds are the result of fraud, however, such understanding of the learned Appeal Court is totally misconceived and against the settled jurisprudence as by now it is established that in case of legacy if a legal heirs set up a plea of disinheritance through any mode of transfer including gift deed, mutation etc. in such eventuality it is for him to prove the same and the burden of its genuineness or otherwise could never be shifted to the other party as it is for the beneficiary of the document to prove that the same has validly been executed and especially when this right is claimed against his other siblings. In a case[4], the Apex Court held that when a person challenges the validity of the transaction and instrument of transfer, then the onus to prove shifts and as such the beneficiary of such transaction must prove the execution of original transaction as well as valid attestation of document. Similarly, in other cases[5], the Apex Court has held that whenever any such transaction is questioned, the onus lies on the beneficiary to prove the transaction and every ingredient thereof as well as the documents if executed for its acknowledgment.
12. In this case the two courts below are at variance in their findings as the learned trial court had decreed the suit, whereas the appellate court has reversed the same, therefore, in case of inconsistency of the judgment and decree between the appellate Court and the trial Court, the High Court shall see that as findings of which of the Court are based on proper appraisal of evidence and as such in this case after analyzing and evaluating the evidence on file, the findings recorded by the learned trial are correct and are the result of proper appreciation of evidence, whereas the findings of the appellate court are legally not sustainable. In a case[6] it was held by the Apex Court that "in a case of inconsistency of judgment between the two Courts below the High Court was supposed to give its findings after reappraisal of the entire evidence. It was further held in the aforesaid judgment that the settled law in this regard is that revisional Court in such like situation has to re-appraise the entire evidence just to determine as to findings of which Court were based on proper appraisal of evidence and appreciation of law". Similarly, in another case[7], it was held by the Apex Court that "if the finding of fact reached by the first appellate Court is at variance with that of the trial Court and as such the finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded.
This view is fortified by a long chain of judgments[8].
13. In view of the above discussion and exposition of law on the subject, this Revision Petition is allowed, the impugned judgment and decree of the learned Additional District Judge-Hi, Mardan dated 28.01.2017 is set aside and that of the learned Senior Civil Judge, Mardan dated 19.07,2014 is restored and maintained.
1. Sheikh Muhammad Muneer . vs. Mst. Feezan (PLD 2021 SC 538)
2. Farid Bakhsh . vs. Jind Wadda and others (2015 SCMR 1044)
3. Qasim Ali v. Khadim Hussain through legal representatives and others (PLD 2005 Lahore 654) and Shamu Patter v. Abdul Kadir Rowthan and others (1912 (16) IC 250).
4. Muhammad Asif . vs. Amjad lqbal and others (2025 SCMR 667)
5. Muhammad Yaqoob .vs. Mst. Sardaran Bibi and others (PLD 2020 SC 338) and Rehmat Noor .vs. Zulqarnain (2023 SCMR 1645)
6. "Mst. Azra Gulzar v/s Muhammad Farooq & another" reported at 2022 SCMR 1625
7. "Madan Gopal and 4 others v. Maran Bepari and 3 others" reported at PLD 1969 SC 617
8. Alloo v. Sher Khan and others (PLD 1985 SC 382), Abbas Ali Shah and 5 others v. Ghulam Ali and another (2004 SCMR 1342), Abdul Aziz v. Khuda Dad Khan (2004 SCMR 1046), Karim Bakhsh through L. Rs. and others v. Jindwadda Shah and others (2005 SCMR 1518), Muhammad Din and others v. Mst. Naimat Bibi and others (2006 SCMR 586), Muhammad Hassan v. Khawaja. Khalil ur Rehman (2007 SCMR 576) and Q.B.E. Insurance (International) Ltd. v. Jaffar Flour and Oil Mills Ltd. (2008 SCMR 1037).