' Brief facts necessary for the disposal of this revision petition are that the respondent instituted a suit against the petitioner for a declaration that she is owner in possession of suit-land measuring 29 Kanals, 13 Marlas, the respondent had no concern with the same and exchange deed registered on 13-3-1983 depicting exchange of the aforesaid land by her with the respondent's land is fake and based on fraud.
2. It was specifically alleged by the respondent that she had never exchanged the suit-land nor she had ever appeared in connection with exchange before the Registrar and the said deed of exchange was not thumb-marked by her.
3. The suit was contested by the petitioner. After framing relevant issues and recording evidence, it was ultimately decreed by Civil Judge, Lodhran on 28-11-1987. Petitioner's appeal against the decree was dismissed by Additional District Judge, Lodhran on 9-9-1992.
4. The aforesaid concurrent judgments of the two Courts below are assailed in this civil revision by the petitioner.
5. Learned counsel for the petitioner while assailing the impugned judgments argued as under:--
(i) The learned Appellate Court erred in relying on report of Finger Print Bureau Exh.P.1, as it was in respect of a criminal case and could not have been looked into or considered as a piece of evidence in proceedings before Civil Court.
(ii) Execution of the registered sale-deed was proved on record by the evidence produced by the petitioner but both the Courts below did not consider the said evidence credible for reasons which were not sound and plausible.
(iii) Proper issue was not framed, and
(iv) Both the Courts below while exercising jurisdiction had acted illegally and with material irregularity.
6. Revision petition was strongly opposed by the learned counsel for the respondent, who had during his arguments fully supported the impugned judgments and added that concurrent findings on question of fact recorded by the two Courts below that exchange deed was not executed by the respondent, cannot be assailed in revisional jurisdiction.
7. Argument heard. Livil revision and its annexures perused.
8. Adverting to the first argument of the learned counsel for the petitioner, it may be observed that report of the Finger Print Bureau was exhibited during the evidence without any objection from the petitioner hence the objection that the said report could not have been considered, cannot be entertained at this revisional stage. Anyhow, from a perusal of the impugned judgments it is evident that the finding recorded by them that exchange deed was not executed by the respondent is not based solely on report Exh.P.1, but also on other evidence which was available on record. Contention is, therefore, repelled.
9. Second argument of the petitioner's counsel relates to assessment and appraisal of evidence which is the function of the trial Court and its Appellate Court which are vested with exclusive jurisdiction in that regard. It is within the discretion of the trial Court and the Appellate Court to believe or disbelieve the evidence and revisional jurisdiction is not attracted merely because another view is possible on the same evidence unless the finding is based on no evidence or is arbitrary or fanciful .
10. A perusal of the impugned judgments reveals that findings are based on evidence and conclusions drawn are supported by sound and plausible reasoning. D.W.2, who had identified the respondent before the Registrar at the time of registration of the exchange deed was neither related to her nor was resident of the same place and she was not known to him; he was also an accused in criminal case registered by the respondent. D.W.3, was the husband of the petitioner while D.W.4, was her son-in-law and being closely related to her they were considered as interested witnesses; their testimony was not supported and corroborated by any independent evidence; other marginal witness and scribe of the exchange deed were withheld; and land allegedly given in exchange to the respondent was of inferior quality; it was situated in flood area and was uncultivated.
11. After re-examining and re-assessing the evidence, the learned Appellate Court had maintained the findings of the learned trial Court including that, the registered exchange deed was not executed by the respondent.
12. Where conclusions arrived at are based on sound and plausible reasoning, interference in revisional jurisdiction is not warranted as such jurisdiction is directed against irregular exercise, non-exercise or illegal assumption of jurisdiction and not against conclusions of fact or law not involving question of jurisdiction. Second argument of the petitioner's counsel is, therefore, repelled.
13. Referring to the third argument, learned counsel for the petitioner could not point out which issue was not correctly framed and how the petitioner was prejudiced. After the evidence is led by the parties on all the controversial points the objection regarding framing of issues is not of much significance.
14. Fourth and last argument of the petitioner's counsel is misconceived inasmuch as the word "illegally or with material irregularity" have reference to material defccis of procedure and not to be errors of law or fact, after the formalities which the law prescribes have been complied with.
Commission of any error of procedure by he E two Courts below could not be pointed out.
15. For the reasons stated above, the revision petition is hereby dismissed.
Revision petition dismissed.
2.003 MLD 1280 [Lahore] Before a. Ijaz Ahmad, J Mst. IQBAL BEGUM and 2 others---Petitioners versus. MUHAMMAD BASHIR and others---Respondents Civil Revision No,846-D of 1998, heard on 31st March, 2003.
(a) Qanun-e-Shahadat (10 of 1984)--- ----Arts. 17 & 79---Proof of execution of document---Preconditions to invoke provisions of Art. 17, Qanun-e-Shahadat 1984 are that matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two male persons---Where the document is required by law to be attested, the factum of non-production of attesting witnesses under Art. 79 of the Qanun-e-Shahadat, 1984 is reconstructive in nature and applies only to those documents which are required by law to be attested by two witnesses. [p. 1290] A
(b) Islamic Law--- - ---Gift---Validity---Gift deed had to be registered. [p. 1290] B Ismail Sayed and another v.
Commissioner of Karachi and another 1968 SCMR 509 ref.
(c) Qanun-e-Shahadat (10 of 1984)--- - ---Art. 79---Gift deed---Proof of document to be attested---Evidence could be admitted to prove the signatures of the attesting witness until absence of the attesting witness had been duly accounted for---Where the attesting witness was said to have expired contents of the gift deed had to be proved by producing secondary evidence. [p. 1290] C Swamidin Sing and another v.
Kaneez Fatima and others 11 Ind.
Cas. 225; Jadunath Mitra v. Isar Jha and others AIR 1939 Pat. 47; Mst. Bashiran v. Muhammad Hussain and others AIR 1941 Oudh 284; Abinash Chandra Bidyanidhi Bhattacharjee v. Dasarath Mali and others AIR 1929 Cal. 123; Shib Chandra Singha and others v. Goy Chandra Paul and others AIR 1922 Cal. 160; Sheikh Karimullah v. Gudar Koeri and others AIR 1925 All. 56; Ponnuswami Goundan v.
Kalyanasundara Iyer and others AIR 1934 Mad. 365 and Ponnuswami Goundan v. Kalyanasundafa Iyer and others AIR 1930 Mad. 770 ref.
(d) Qanun-e-Shahadat (10 of 1984)--- ----Arts. 103 & 102---Registration Act (XVI of 1908), S.60---Transfer of Property Act (IV of 1882), S. 54---Gift deed---Certificate of registration---Endorsement as to the receipt of consideration/possession is refutable and it is always upon to the other party to refute the same on the ground that it was fictitious meaning thereby that the admission of execution before the Registrar is not sufficient. [p. 1291] D Muhammad Shafi's case PLD 1986 SC 519; Deorao v. Dhondirao and others AIR 1928 Nag. 244 and Siraj Din's case PLD 1997 Lah. 633 ref.
(e) Islamic Law--- ----Gift---Validity---Delivery of possession---Gift deed was not valid if the possession of the donee of the property so gifted in terms of deed was not proved. [p. 1291] E Muhammad Bakhsh v.
Ellahi Bakhsh and others 2003 SCMR 286 ref.
(f) Civil Procedure Code (V of 1908)--- ----S. 96---First Appellate Court has to reverse the findings of the Trial Court after meeting with the reasoning of the Trial Court---Where the First Appellate Court did not advert to the reasoning of the Trial Court in the impugned judgment, such judgment of the First Appellate Court was violative of principles. [p. 1291] F Madan Gopal v. Maran Berpari PLD 1969 SC 617 and Kanwal Nain's case PLD 1983 SC 53 ref.
(g) Civil Procedure Code (V of 1908)--- ----S. 115---Revision---Scope---Where the decision on facts by the Appellate Court was based on no evidence, inadmissible evidence or was so perverse as to cause grave injustice, the Appellate Court had committed material irregularity and High Court, under S. 115, C.P.C. Had ample jurisdiction to disturb such findings of facts. [p. 1292] G Shaukat Nawaz's case 1988 SCMR 851 ref. (h) Islamic Law--- ----Gift---Validity---Where the contents of the gift deed were not proved and the statements of concerned persons were contradictory, High Court ordered that the property, in question, of the deceased donor be distributed amongst the legal heirs of the original owner in accordance with the Injunctions of Islam and Revenue Authorities were to sanction the mutation of inheritance accordingly. [p. 1291] H Ghulam Farid Sanotra and Noor Muhammad Awan for Appellants.
Malik Abdul Wahid for Respondents. Date of hearing: 31st March, 2003.
' Brief facts out of which present revision petition arises are that Ibrahim had two sons namely Barkat Ali and Allah Ditta. Allah Ditta had two sons namely Dilawar Hussain and Sabir Hussain, petitioners Nos.2 and 3. Barkat Ali solemnized marriage with mother of Mst. Iqbal Begum, petitioner No,
1. Barkat Ali had divorced mother of Mst. Iqbal Begum at the time when the age of Mst. Iqbal Begum was 4 years. Barkat Ali had solemnized second marriage with Mst. Noor Begum.
Muhammad Bashir was son of said Mst. Noor Begum from her previous husband. Mst. Iqbal Begum had resided with her mother after divorced, at Kasur, whereas Muhammad Bashir, respondent/defendant had lived with Barkat Ali alongwith his mother Mst. Noor Begum. Barkat Ali was owner in possession of land measuring 39 Kanals, situated in Mauza Zahoora Tehsil and District Sialkot. The petitioner filed a civil suit before the Civil Judge, Sialkot. The contents of plaint reveals that Barkat Ali had died one year ago and after his death, the petitioners/plaintiffs and respondent/defendant No,2 were his legal heirs. The contents of plaint further reveal that the petitioner/plaintiff No,1 being daughter of deceased, is entitled to inherit 1/2 share; whereas petitioners Nos.2 and 3 being real nephews of the deceased, are entitled to 1/4th share and respondent/defendant No,2 being widow of the deceased, is entitled to 1/4th share from the estate of deceased as legal heirs. The contents of plaint further reveals that the original owner Barkat Ali died in the age of 80 and 10 years before his death, he had lost his senses. The deceased had no independent sense because he was under the influence of respondents/defendants Nos.1 and 2.
The contents of plaint further reveal that respondent/defendant No,1 claimed that original owner Barkat Ali had gifted land in-question through the gift deed dated 7-4-1986. The contents of plaint further reveals that the gift deed is against the law and facts because the original owner was not in his senses for the last 10 years before his death and he was unable to distinguish between bad and good acts. The respondents/defendants got executed deed in their favor through undue influence as the original owner never executed gift deed in favor of respondents/defendant Nos.1 and filed a civil suit that the gifted deed be cancelled. The respondents/defendants filed written statement controverting the allegations levelled in the plaint. Out of pleading of the parties, the learned trial Court framed the following issues:-- ISSUES
(1) Whether the gift deed dated 7-4-1986 is illegal against the facts, void and ineffective upon the rights of the plaintiff? OPP
(2) Whether the plaintiffs are entitled to get a decree for possession as prayed for in the plaint? OPP
(3) Whether the gift deed dated 7-4-1986 is the result of undue influence and Barkat Ali deceased had lost his senses for the last 10 years? OPP
(4) Whether the suit is insufficiently valued for the purposes of court-fee and jurisdiction, if so what is its proper valuation? OPD
(5) Whether the suits is time-barred? OPD
(6) Whether the plaintiffs are estopped by their words and conduct to bring this suit? OPD
(7) Whether deceased Barkat Ali has validly transferred suit property vide impugned deed in favor of defendants? OPD
(8) Whether the defendants are entitled to recover special costs? OPD
(9) Relief.
' The learned trial Court decreed the suit vide judgment and decree dated 15-12-1992 in favor of the petitioners/plaintiffs. Respondent No,1 being aggrieved filed an appeal before the learned Additional District Judge, Sialkot, who accepted the same vide impugned judgment and decree dated 20-3-1998. Hence, the present revision petition.
2. The learned counsel of the petitioners submits that the First Appellate Count has not applied its judicious mind to facts and circumstances of the case in hand and has set aside the well considered decision of the Court below and reason and rhyme. In support, of his contention, he relied upon "Madan Gopal v. Maran Berpari" (PLD 1969 SC 617). He further submits that even otherwise, the decision of the First Appellate Court is the result of non-reading and misreading of the material evidence. He further submits that the donee had not established three necessary ingredients of valid gift i,e, declaration, acceptance and delivery of possession. He further submits that the respondents failed to prove the gift deed in terms of Article 17 and 79 of Qanun-e- Shahadat Order 1984. He further submits that the gift deed was attested by two witnesses i,e, Bashir Hussain Lambardar and Manzoor Hussain. He further submits that the respondents failed to produce both these two attesting witnesses. He further submits that the respondents did not bring on record sufficient material to prove that Bashir Hussain Lambardar, and attested witness was not available or dead. He further submits that the respondents did not bring on record sufficient material for identification of signatures of the aforesaid Bashir Hussain or to bring on record sufficient material that the aforesaid Bashir Hussain had attested the gitt deed. He further submits that the First Appellate Court mis-read evidence of P.W.1, Iqbal Begum, D.W.1 Manzoor Hussain and D.W.2 Muhammad Boota. He further submits that the First Appellate Court reversed the finding of the learned trial Court by misreading of evidence on record. He further submits that Muhammad Boota did not sign the gift deed as is evident from the contents of gift deed Exh.D/I which is at page 82 of file of this Court. He further submits that the respondents failed to bring on record any documentary proof to show that respondent No,1 had secured the possession of the land in- question in terms of gift deed. He further submits that respondent No,1 was major at the time of execution of gifted deed in his favor by the original owner, therefore, it was duty and obligation of respondent No,1 to bring on record sufficient material to prove that the original owner had delivered the possession of the land in-question 'to him, therefore, the judgment of the First Appellate Court is not in accordance with law laid down by the Superior Courts. In support of his contention, he relied upon the following Judgments:- "Azim Khan v. Malik Mobeen Khan and others (2001 SCMR 34) and Muhammad Bakhsh v. Ellahi Bakhsh and others (2003 SCMR 286).
' He further submits that respondents failed to bring on record sufficient material for execution of gift deed by the original owner in favor of respondent No,1 by excluding legal heirs of original owner, therefore, the judgment of First Appellate Court is not sustainable in the eyes of law and the same is not in accordance with law laid down by the Superior Courts, In support of his contention, he relied upon the following judgments:-- "Alif Khan v. Mst. Mumtaz Begum and another (1998 ,SCMR 2124) and Barkat Ali through legal heirs v.
Muhammad Ismail and others (2002 SCMR 1938)
' He further submits that the original owner was old and ailing person, therefore, he executed the gift deed of the land in-question in favor of respondent No,1 under the influence of respondents Nos.1 and 2 but this fact was not considered by the First Appellate Court in the impugned judgment.
In support of his contention, he relied upon the following judgments:-- "Mst. Sardaran Bibi v. Taj Din (PLD 1993 Lahore 411) and Muhammad Shafi v. Liaqat Hussain and others (1999 CLC 1130)."
' He further submits that it is the duty and obligation of respondents to prove the contents of gift deed in spite of the fact that the gift deed was a registered document. In support of his contention, he relied upon "Mst. Khurshid Bibi v. Rehmat Ali and others" (NLR 2001 Civil 617). He further submits that the respondents failed to produce any independent evidence to prove the execution and contents of gift deed; whereas the petitioners had brought on record sufficient material to show that the land in-question was gifted in favor of respondent No,1 by original owner under the influence of respondents Nos.1 and 2, therefore, the impugned judgment is the result of misreading and non-reading of the record as is evident from para. No,18 of the impugned judgment. He heavily relied upon the statement of Mst. Iqbal Begum, petitioner/plaintiff No,1, P.W.1 in toto. According to which, original owner was not in senses at the time of execution of gift deed, therefore, onus was automatically shifted under the law to the respondents to prove the contents of gift deed. He relied upon examination-in-chief of Muhammad Boota D.W.2 to following effect:--{{URDU TEXT}} ' He further submits that D.W.2 Muhammad Boota admitted in cross-examination the suggestion to the following effect:--{{URDU TEXT}} ' He further submits that D.W.3 Sultan Shah also did not prove the case of the respondents as is evident from cross-examination of the said witness D.W.3 Sultan Shah had taken different stands.
3. The learned counsel of the respondents submits that the First Appellate Court had reversed the findings of the learned trial Court after proper appreciation of evidence on record as is evident from paras. Nos.18 to 22 of the impugned judgment. He further submits that it is the duty and obligation of the petitioners to bring on record sufficient material to show that the original owner was 80 years old and he was senseless. He further submits that the original owner had divorced the mother of petitioner No,1 at the time when petitioner No,1 was 4 years of age. Petitioner No,1 remained with her mother at Kasur and marriage of petitioner No,1 was also solemnized at Kasur.
The original Owner/father of petitioner No,1 did not participated in the marriage ceremony of petitioner No,
1. Petitioner No,1 did not visit the house of original owner and did not bring him to any Doctor for treatment. The petitioners did not bring on record any medical report to show that original owner was senseless at the time of execution of gift deed in-question. Whereas, petitioner No,1 had brought on record sufficient material in the shape of Exh.D-4 that original owner died on account of fever. He remained 5 days in the condition of illness . He further submits that the petitioners cannot take benefit of weakness of the case of respondents/ defendants. According to law, petitioners have to prove their own case on the basis of evidence produced by the petitioners before the learned trial Court, therefore, the learned trial Court erred in law to decree the suit in favor of the petitioners; whereas the learned First Appellate Court was justified to reverse the finding of the learned trial Court which is in accordance with law. In support of his contention, he relied upon Mst. Fatima Bibi's case (PLJ 2000 Lahore 2119). He further submits that the petitioners failed to bring on record any reliable independent evidence to show that the gift deed was executed by the original owner in favor of respondent No,1 on the basis of fraud and mis- representation under the undue influence. He further submits that the petitioners have no relation with original owner during his life time, therefore, original owner has no other option except to execute gift deed in favor of respondent/defendant No,
1. The respondents had looked after the original owner, therefore, he had natural love and affection to execute gift deed in-question in favor of respondent/defendant No,
1. He relied upon the following pieces of evidence from the cross-examination of P.W.2 Noor Muhammad:--{{URDU TEXT}} ' He also relied upon the following piece of evidence from the cross-examination of P.W.3 Muhammad Sharif:{{URDU TEXT}} ' He also relied upon the following piece of evidence from the examination-in-chief of D.W.1 Manzoor Hussain and Bashir Hussain P. W.{{URDU TEXT}} ' He also relied upon Exh.D.2 wherein name of petitioners Nos.2 and 3 are mentioned alongwith Shamshad Bibi, Irshad Bibi, Taj Bibi, Shehnaz Bibi and Barkat Ali. According to him "Shamshad Bibi, Irshad Bibi. Taj Bibi and Shehnaz Bibi, real niece of original owner, who were not impleaded as respondents/defendants in the main suit filed by the petitioners, who are also admittedly co- sharers/co-owners, therefore suit was liable to be dismissed. In support of his contentions, he relied upon Abdul Ghani v. Ibrar Hussain (1999 SCMR 348). He further submit that the petitioners failed to prove that gift-deed was executed by misrepresentation and fraud and failed to prove the contents of the plaint under the provisions of Qanun-e-Shahadat Order, 1984. In support of his contentions, he relied upon Fateh Muhammad and others v. Gulsher (2000 CLC 409) and Noor Muhammad v. Jamal Din and otherS (2000 CLC 305). He further submits that petitioners have to prove the allegation of fraud by producing their strong evidence, therefore, impugned judgment of the First Appellate Court is valid and the First Appellate Court was justified to reverse the findings of the learned trial Court. In support of his contention, he relied upon Noor Muhammad Khan and others v. Habib Khan and others (PLJ 1994 SC 331) and Muhammad Bashir v. Allah Ditta and others (1994 SCMR 1870). He further submits that respondents relied upon registered gift deed, therefore, First Appellate Court was justified to accept the gift deed on the well-known principle of presumption of truth qua the registered documents. In support of his contention, he relied upon Shamir v. Faiz Illahi (1993 SCMR 145). He further submits that statement of official witnesses cannot be ignored qua the mental condition of donor and in the circumstances official witnesses have no enmity or interest with any side of the parties in the litigation. In support of his contention, he relied upon Noor Muhammad Khan and others v. Habib Ullah Khan and others (PLD 1994 SC 650). He further submits that undivided gift is valid in the eyes of law. In support of his contention, he relld upon Muhammad Sadiq v. Sardar and others (1995 SCMR 710). He further submits that Muhammad Boota in the circumstances, be considered as attesting witness. In support of his contention, he relied upon Dil Murad and others v. Akbar Shah (1995 PSC 1297). He further submits that name of Bashir Hussain appeared in the Khasra Girdawari for the year 1987 as owner which is attached with the file of this Court at page 93. He further submits that donor appeared before Suleman Shah, Revenue Office/SubRegistrar at the time of execution of gift deed, who attested the same after his complete satisfaction. The learned counsel of the petitioners failed to point out any piece of evidence, which was misread and non-read by the First Appellate Court. This Court has no jurisdiction to substitute its own findings in place of the findings of the learned Courts below while exercising power under section 115, C.P.C. He summed up his arguments that judgment of the First Appellate Court is in accordance with law.
4. The learned counsel of the petitioners in rebuttal, submits that judgments of the both the Courts below are at variance, therefore, this Court has ample power to reappraise the evidence on record while exercising powers under section 115, C.P.C. He further submits that the petitioners specifically alleged in the contents of plaint and proved the contents of the plaint by producing independent evidence to show that donor was an old ailing person at the time of execution of the gift deed, therefore, onus automatically shifted upon respondents/defendants that respondents/defendants had to show that the gift deed was executed without any influence of respondents/defendants. In support of his contention, he relied upon Hakim Khan v. Nazir Ahmad Lughmani and others (1992 SCMR 1832), Tooti Gul and 2 others v. Irfanud Din (1996 SCMR 1386) and Mst. Ghulam Sughran and others v. Sahibzada Ijaz Hussain and others (PLD 1986 Lahore 194). He reiterated his arguments that element of love and affection was missing in the contents of gift deed, therefore, the impugned judgment is not in accordance with law as is evident from para. 9 of the impugned judgment. In support of his contention, he relied upon Barkat Ali v. Muhammad Ismail and others (2002 SCMR 1938). He further submits that petitioners had challenged the gift deed in the plaint, therefore, other co-sharers are not necessary parties. He summed up his arguments that documents in-question is to be attested under the law, therefore, respondents have to prove the same in terms of Article 17 and 79 of the Qanun-e-Shahadat Order, 1984.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
6. It is better and appropriate to reproduce the basic facts in chronological order to resolve the controversy between the parties:--
(i) Barkat Ali, donor/original owner of the land in question is father of petitioner No,1 and uncle of petitioners Nos.2 and 3.
(ii) The donor had divorced his first wife at the time when petitioner No,1 was at the age of 4 years.
(iii) Petitioner No,1 lived with her mother till her marriage.
(iv) Original owner solemnized marriage with Mst. Noor Begum respondent No,2.
(v) Muhammad Bashir respondent No,1 was son of Mst. Noor Begum from her previous husband.
(vi) Muhammad Bashir lived alongwith Mst. Noor Begum in the house of Barkat Ali, original owner/donor.
(vii) Barkat Ali donor executed registered gift deed in favor of respondent No, 1.
(viii) The gift deed was attested by attesting witnesses, i,e, Bashir Hussain Nambardar and Manzoor Hussain.
' Admittedly Bashir Hussain did not appear as a D.W. Before the trial Court; whereas Manzoor Hussain D.W.1 admitted in cross-examination qua the death of other attesting witness to the following effect:-{{URDU TEXT}} ' Bashir Hussain has since been died after 8/9 months of his statement before the trial Court. Barkat Ali original owner/donor was 80 years old, who died according the Exh.D.4 on account of fever. Both the parties did not bring on record any medical evidence to show that original owner was senseless or insane. The point requires for adjudication is whether Exh.D.1 gift deed involves financial or future obligation and Article 17(2)(a) of Qanun-e-Shahadat Order, 1984 is attracted or not. It is better and appropriate to reproduce the provisions of the said Article to resolve the controversy which is as under:--
(1) The competence of a person to testify, and number of witnesses required in any case shall be determined in accordance with injunctions of Islam as laid down in the Holy Quran and Sunnah.
(2) Unless otherwise provided in any law relating to the enforcement of Hadood or any other special law.
(a) In matters pertaining to financial or future obligation, 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.
' The aforesaid provisions of Qanun-e-Shahadat contain following preconditions to invoke the aforesaid provisions of law;
(i) In matters pertaining to financial if reduced to writing the instrument shall be attested by two male,
(ii) In matters pertaining to future obligation, if reduced to writing the instrument shall be attested by two men.
' It is settled principle of law that where the document is required by law to be attested, the factum of non-production of attesting witnesses under Article 79 of Qanun-e-Shahadat Order, 1984 is fatal.
In other words, Article 79 of Qanun-e-Shahadat Order, 1984 is reconstructive in nature and applied only to those documents which are required by law to be attested by two witnesses. It is better and appropriate to reproduce Article 79 of Qanun-e-Shahadat Order, 1984, which is 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 the 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 on attesting witness in proof of the execution of any document and not being a Will which has been registered in accordance with provisions of the Registration Act. 1908 (XIV of 1908) unless its execution by the persons by whom it purports to have been executed is specifically denied."
' The gift deed was attested by two witnesses, namely Manzoor Hussain D. W.1 and Bashir Hussain Lambardar. Bashir Hussain Lambardar was not produced on the ground that he had been died at the time of recording of evidence as is evident from the operative part of statement of D.W.1. It is settled proposition of law that gift deed be registered. In arriving to this conclusion, I am fortified by the law laid down in Ismail Sayed and another v. Commissioner of Karachi and another (1968 SCMR 509). Now other question is whether after the death of Bashir Hussain Lambardar, the gift deed was proved by the respondents in terms of Qanun-e-Shahadat Order, 1984 or not. It is settled principle of law that under the provisions of Qanun-e-Shahadat Order, 1984, evidence could be admitted to prove the signatures of the attesting witness until absence of the attesting witness had been duly accounted for, as per principle laid down in Swamidin Sing and another v. Kaneez Fatima and others (II Indian Cases 225). It is duty and obligation of the respondents to prove the contents of the gift deed by producing secondary evidence. In arriving to this conclusion, I am fortified by the law laid down in the following judgments:-- ' Jadunath Mitra v. Isar Jha and others (AIR 1939 Patna 47); Mst. Bashiran v. Muhammad Hussain and others (AIR 1941 Oudh 284): Abinash Chandra Bidyanidhi Bhattacharjee v. Dasarath Mali and others (AIR 1929 Calcutta 123); Shib Chandra Singha and others v. Gour Chandra Paul and others (AIR 1922 Calcutta 160); Sheikh Karimullah v. Gudar Koeri and others (AIR 1925 Allahabad 56); Ponnuswa mi Goundan v. Kalyanasundara Lyer and others (AIR 1934 Madras 365) and Ponnuswami Goundan v. Kalyanasundara Lyer and others (AIR 1930 Madras 770).
' It is settled principle of law that endorsement of Registrar as, to the receipt of consideration/possession is refutable and it is always upon the other party to refute it on the ground that the same was fictitious. In arriving to this conclusion, I am fortified by Muhammad Shafi's case (PLD 1986 SC 519), meaning thereby the admission of execution before the Registrar Office is not sufficient as per principle laid down in Deorao v. Dhondirao and others (AIR 1928 Nagpur 244). A reference can also be made to the judgment of the Division Bench of this Court in Siraj Din's case (PLD 1997 Lahore 633) in which following principle was laid down:-- "Accordingly, we have no hesitation to say that endorsement made by the Registrar on questioned document does not prove that it was executed by Umar Din in favor of Siraj Din. The contents of the gift deed and constituents of Hiba are to be proved by Siraj Din in consonance with the provisions of Qanune-Shahadat Order, 1984 and the rule of Muslim Gifts."
' The statements of D.W.1 Manzoor Hussain and D.W.3 are contradictory to each other, whereas Muhammad Boota D.W.2 admitted that possession of the land in question remained with declarants/original owner/donor. It is pertinent to mention here that gift deed was executed on 7- 4-1986 and this fact was not incorporated in the Revenue Record except Khasra Giradawari in Khareef, 1987. The respondents failed to produce any document to show that the respondents were in possession of the land in question in the terms of aforesaid gift deed, therefore, the gift deed is not valid, as per principle laid down by the Hon'ble Supreme Court in Muhammad Bakhsh's case supra (2003 SCMR 286). I uphold the judgment of learned trial Court which is in accordance with dictum laid down by the Superior Courts in the aforesaid judgment and under the provisions of Qanun-e-Shahadat Order, 1984. It is also settled principle of law that the First Appellate Court has to reverse the findings of the trial Court after meeting the reasoning of the trial Court, as per of the trial Court after meeting the reasoning of the trial Court, as per principle laid down by the Honourab1e Supreme Court in Madan Gopal's case (PLD 1969 SC 617). The First Appellate Court did not advert to the reasoning of the trial Court in impugned judgments. The judgment of the First Appellate Court is in violation of the law laid down by the Superior Courts in the aforesaid judgments. This concept of jurisdiction and illegality had been considered by the Honourable Supreme Court in Kanwal Nain's case (PLD 1983 SC 53) to cover cases, where decision on facts is based on no evidence, inadmissible evidence or so perverse as to cause grave injustice would result therefrom. The First Appellate Court has committed material irregularity. This Court has ample jurisdiction to disturb the findings of facts in such a situation while exercising power under section 115, C.P.C., as per principle laid down by the Honourable Supreme Court in Shaukat Nawaz's case (1988 SCMR 851). It is pertinent to mention here that statement of the respondents/defendants are contradictory in nature and the petitioners failed to prove the contents of the impugned gift deed in terms of law laid down by the Superior Court in the aforesaid judgments.
' In view of what has been discussed above, this revision petition is accepted with no order as to costs. Resultantly judgment of the First Appellate Court is set aside and judgment of the learned trial Court is upheld with the modification that the land in-question of the original owners shall be distributed amongst the legal heirs of the original owner Barkat Ali, in accordance with Injunction of Islam. The Revenue Authorities are directed to sanction the mutation of inheritance of the original owner in accordance with injunction of Islam in the terms of aforesaid direction.