1. ' C.M.A. No, 647 of 2001---Upon the application having been made that property in fact belonged to the Objector namely, Muhammad Hamad Azhar son of Major Hamid Afsar it was necessary to bring the true facts, for the purposes of deciding the application, as whether the Objector is real owner of the said property bearing No,34/C 10, Badar Commercial Street Defence, Phase-V (Ext.), Karachi.
2. The parties were directed to lead evidence. The following witnesses have been produced:-- ' Mr. Mehboob Ali, a Clerk in the Stamp Office, City Court, Karachi.
3. ' Mr. Zafar Alam, Stamp Vendor.
4. ' M/s. Makhdoom Ejaz, Advocate and Ahmed Ali, Notary Public and Advocate.
5. ' Major Hamid Afsar, the Donor and the Objector examined himself. From the evidence there is no doubt that the stamp paper used is one that was sold by the Stamp Vendor Zafar Alam, which is substantiated with the evidence given by Mr. Mehboob Ali the Clerk in the Stamp office. It also seems to be correct, that the stamp paper may have been sold to the Advocate Mr. Makhdoom Ejaz. It is also apparent that the declaration and confirmation of oral gift was made on the stamp paper bearing No,43400 dated 8-1-1996, and it was sold by the Stamp Vendor- Zafar Alam.
6. However, notwithstanding the various objections taken, as to the purchase earlier and retention of the stamp paper and its use subsequently, or otherwise, the question that needs to be examined is as to whether-there was an oral gift and if such oral gift was there, is there sufficient evidence to prove such gift. Mr. Rao Shakir Naqshbandi relies on the documents itself and states the document that was executed on 8-1-1996 was a declaration and confirmation of oral gift made on 14-12-1995 as contained on page No, 3 of the said document before two witnesses namely Muhammad Rafiq Amjad and Muhammad Ejaz. In fact the oral gift according to him categorically shows and gives detail of the property which is duly witnessed by the same persons namely, Muhammad Rafiq Amjad and Makhdoom Ejaz. It has been duly signed by the donor namely, Major Hamid Afsar (judgment-debtor) and his son Muhammad Hammad Azhar the donee. The gift has been accepted by an acceptance, and is the said declaration of oral gift and contains the signature of the donee as also the witnesses. According to him the document is attested though no attestation is required to be made on a document where the attesting witnesses themselves are the two persons having witnessed the said gift. Article 79 of the Qanoon-e-Shahadat clearly provides 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 at least have been called for the propose 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 provisions of the Registration Act (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
7. It is evident from the provision of the Qanun-e-Shahadat, that if a document is required by law to be attested, it shall not be used in evidence, until two attesting witnesses, at least have been called for the purposes of proving its execution. Both the attesting witnesses have been produced. The purpose for the production of said witnesses was to verify whether a document has been executed. ##ES## Both witnesses, namely, Makhdoom Ejaz and Muhammad Rafiq Amjad have been put to cross-examine. Before proceeding to the analysis of the two attesting witnesses, it will also be important to see the effect of a document having been notarized, where Notary Public has denied having notarized such document. Notary Public namely, Ahmed Ali has categorically stated that the document namely declaration and confirmation of oral gift dated 8-1-1996 has not been attested, signed or sealed by him, in fact he had shown original notorial register and produced a copy of the relevant page as Exh.Z.2. The register was seen by me and returned. This register seemed to be a continuous and running register written in hand. On the page produced (Exh.Z.2), various agreements, Power of Attorneys, Deeds, Wills, etc., have been mentioned, however, there is no mention of this declaration and confirmation of oral gift on the date of its execution i,e, 8-1-1996.
8. The said Notary Public Mr. Ahmed Ali has also produced in evidence, from the same register the first page (Exh. Z/1) being the specimen stamps, signatures and the initials that he used for the purposes of attestation or for notarizing of a document. I had also on that date seen originals and have put a note in the evidence, that both the seals on the document and the signatures of the Notary Public are not original or genuine. In the wake of this, it is clear that the document has been manipulated. Mr. Rao Shakir Naqshbandi states that it is not necessary to notarize a document, and the document even if it is taken to be wrongly notarized, it will not affect the validity of the gift.
9. That may be so, but the position is that the document was produced as it is and it is only after it was shown that the document was not actually notarized such was argued, that it was the defect of Mr. Makhdoom Ejaz, Advocate, who had got document notarized behind their back for which donor or donee cannot be blamed. This brings the said Advocate Mr. Makhdoom in very precarious situation (i) that he is a witness to a document and (ii) that he acted to defraud his clients. As far as the other position is concerned I shall deal with it later, but in the first instance as a witness who has, as is apparent, got the fraudulent signatures and stamps, cannot be believed. Otherwise also even if the witness is believed, nowhere in the evidence of Mr. Ejaz has it been shown that the property was orally gifted earlier in time, as contained on the document, when he was himself the witness to the oral gift. Further, from the evidence of the donor and donee it is also clear, that the said Makhdoom Ejaz, had never visited their house. There is nothing in the evidence also of the said Makhdoom Ejaz to show that the oral gift on the date mentioned in the document, was made in the office. In fact the said Makhdoom Ejaz has stated "I do not know them for past 14 years, but they were introduced to me by my said friend, when I was engaged as an Advocate, to prepare the gift deed". (Underlining is mine)." In the declaration and confirmation of oral gift, on page No,3 it is mentioned In presence of following witnesses on 14-12-1995 at Karachi, the said oral gift/Ribah was voluntarily declared by the donor/declarant and was accepted by the donee/beneficiary:-- {{TABLE}}
1. Muhammad Rafiq Amjad,
2. Makhdoom Ejaz, s/o Al Haj M. Allahyar Khan, s/o Ghulam Mohiuddin, T & T Colony, Gizri, 502-Lawyers Chamber, Karachi. Light House, Karachi. {{TABLE}} ' From the document, therefore, it is absolutely clear, that the oral gift had been made before him.
10. The evidence says otherwise, that he had been referred by one of his friend for the purposes of only preparing the gift deed. From the evidence, it is thus clear that he was not present at the time when that oral gift was made on 14-12-1995. The document was executed on 8-1-1996. Apparently, the Advocate has misconducted himself in the proceedings. It is clear from the Advocate's evidence, that the said document was in fact only prepared on a computer and the names filled in subsequently. The original document, however, shows that it was prepared by some Qaiser Computer and Typing Services, 3 Court Chambers, Opposite City Court, Karachi. The evidence of Makhdoom Ejaz, therefore, under no circumstances can be believed. We now come to the evidence of the second attesting witness, namely, Rafiq Amjad. He has said in his cross-examination as under:- "These signatures done by me were not at my residence. The document on which I have signed as a witness is in relation to the gift of my brother to his son. The gift and acceptance was on the same day when the document was signed. There was talk of this property being gifted but it was never gifted. It was gifted on the day when the document was signed. Before this date all the witnesses, my brother and his son were not present together for the purposes of the property being gifted orally." (under lining is mine).
11. ' It is evident that the oral gift was never made as is stated by the said attesting witness, who is in fact the paternal uncle of the donee and the brother of the donor. He has said that there was a talk of the property being gifted, but it was never gifted and that was done on the day when the document was signed. The effect of the matter, therefore, is that the document seem to have been made up to avoid execution. In view of the above, the original document of gift is retained on the execution file alongwith evidence which has been today produced by Mr. Rao Shakir Naqshbandi.
12. The application C.M.A. No,647 of 2000 is dismissed with the maximum exemplary costs under section 35-A of the C.P.C. The sale of the property shall continue in accordance with the order passed earlier.
13. ' In view of the observations made, the matter is referred to the Sindh Bar Council, for appropriate action against the said Advocate Mr. Makhdoom Ejaz for the reason mentioned which is evident from the evidence of the Notary Public who has said that the stamps and signatures have been incorrectly placed and they are not his stamps nor his signatures.
14. ' Copy of the order shall be remitted to the Sindh Bar Council, Karachi for action for misconduct in accordance with law. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.