Inter-Action Of Article 17(2) And Article 79 Of Qanun-E-Shahadat, 1984

INTER﷓ACTION OF ARTICLE 17(2) AND ARTICLE 79 INTER‑ACTION OF ARTICLE 17(2) AND ARTICLE 79 OF QANUN‑E‑SHAHADAT, 1984 By Ch. Muhammad Bashir, Advocate, Faisalabad Articles 17 and 79 of Qanun‑e‑Shahadat, 1984 are reproduced hereunder to show their interaction. Article 17. Competence and number of witnesses.‑‑(1) The competence of a person to testify and the number of witnesses required in any case shall be determined in accordance with the Injunctions of Islam, as laid down in the Holy Qur'an and Sunnah. (2) Unless otherwise provided in any law relating to the enforcement of Hudood 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; (b) in all other matters, the Court may accept, or act on the testimony of one man only, one woman or such other evidence as the circumstances of the case may warrant. This Article was introduced in the said Order in the process of bringing the law of evidence in conformity with the Injunctions of Islam. Article 79: Proof or 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 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 has amended section 68 of Evidence Act, 1872, which is reproduced hereunder to show the amendment made therein: 68. Proof of execution of document by law to be attested.‑‑If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable for 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 unless its execution by the person by whom it purports to have been executed is specifically denied. Both the said Articles require a document to be attested but the word "attested" has not been defined in. the "Qanun‑e‑Shahadat Order, 1984". According to Lexicon the word' "attestation" means "Signing by a witness to the signature of another of a statement that the document in question was signed in his presence. It is generally sufficient that the party acknowledges his signature to the witness when the witness signs". The word "attested" has been defined in section 3 of Transfer of Property Act, 1882 as under:‑‑ " 'Attested' in relation to an instrument means and shall be deemed always to have meant attested by two or mote witnesses each of whom has seen the executant sign or affix his mark to the instrument or has seen some other person sign the instrument in the presence and by the direction of the executant or has received f rom the executant a personal acknowledgement of his signature or mark or of the signature of such other person and each of whom has signed the instrument but shall not be necessary that more than one of such witness shall have been present at the same time and no particular form of attestation shall be necessary. " The comparative study of Article 79 and section 68 shows that whereas the minimal requirement of production of "one attesting witness" in section 68 has been increased to "two attesting witnesses" in Article 79, the proviso of section 68 has been retained in Article 79 without a change. The word "an attesting witness" in proviso to section 68 is in consonance with the words "one attesting, witness" in the first part of the section but the said words in the retained proviso to Article 79, have no relation to plurality of "two attested witnesses". In the first part of the Article, in order to bring retained proviso in harmony with the first part of the Article it will be proper to substitute the words "an attesting witness" with words "the attesting witnesses" Article 79 embraces within its fold documents which are required to be attested by law. What documents are required to be attested by law, will have to be located by reference to substantive laws. While I find it difficult to embark upon examination of laws to provide an exhaustive list of such documents, but, hereunder, are detailed a few, which require attestation: (i) Mortgage deed (section 59 of Transfer of Property Act, 1882). (ii) Gift‑deed (section 123 of Transfer of Property Act, 1882). (iii) Banking agreements executed by or on behalf of a Bank and a borrower or customer (section 17(2) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. (iv) Notice of Talb‑e‑Ishhad (section 13(3) of Punjab Pre‑emption Act, 1991). Though sale‑deed under section 54, lease deed under section 107 and Exchange Deed under section 118 of Transfer of Property Act are required to be brought about by means of registered instruments but are not required to be attested. Article 17(2)(a)(b) nave overriding effect on Article 79. Article 17(2) classifies documents, by reference to nature of subject- matter into two categories: (i) Relating to financial or future obligation. (ii) Relating to other matter. The first category falls in Article 17(2)(a). It requires such document to be attested by two men, or by one man and two women and evidence to be led accordingly. The second category falls in Article 17(2)(b). It may be proved on the testimony of one man, or one woman or such other evidence as the circumstances of the cases may warrant. Article 79 deals with documents required by law to be attested by two witnesses, irrespective of the nature of the subject‑matter of the documents, whether involving financial or future obligation, or not. If a document, ostensibily falling under Article 79, relates to financial or future obligation, then, as per force of division of documents under Article 17(2), it will be required to be proved under Article 17(2)(a). If on the other hand, it relates to other matters, then it will not remain to be dealt with under Article 79 but will be relegated to the position of a document under Article 17(2)(b), in spite of the attestation and will be amenable to proof by the simple standard of evidence prescribed thereunder. So the subject‑wise classification of documents under Article 17(2) has the effect of demolishing Article 79. Even otherwise the words "financial or future obligation" are exhaustive enough to include all sorts of documents, whether required to be attested, or not. It is difficult to imagine a transaction embodied in a document which may not have financial implications. All documents covered by Article 79 will, of necessity, fall under Article 17(2)(a). Even General Power of Attorney has been held by Supreme Court to be covered by Article 17(2)(a) (1999 SCMR 2594). Assuming the sub-articles to have independent existence, the following contradictions are surfaced: (i) Under Article 79 a registered document not specifically denied to have been executive by its executant, is not required to be proved by production of two witnesses, but, on the other hand, under Article 17(2)(a) even registered document is not absolved of being proved by the strict standard of evidence required thereunder: (ii) Differential treatment of evidence of women witnesses Article 17(2)(a) treats two women witnesses equal to one man witness, while Article 79 does not draw such a distinction on account of difference of gender. Under Article 79 both women and men are at par and their evidence is of equal credence. It looks absurd and anomalous that under one law, a woman witness when examined under Article 79 is a full witness, but when examined under Article 17(2)(a), is half of a witness. This discrimination is unwarranted by Fundamental Right 25(2) of the Constitution of Pakistan. The Legislature will be well‑advised to eliminate this discrimination. (iii) Unequal evidentiary valuation under Article 17(2)(a) and Article 79 Under Article 79 a woman witness is treated as perfect a witness as a man. A document witnessed by two women, can be proved by their production under Article 79 but when a document is witnessed by a man and two women under Article 17(2)(a) then, apart from one man witness, the two women witnesses are required to be physically present in Court when they are under examination, so that they may be reminding each other on any fact in issue. (iv) Futility of cross‑examination on two women witnesses, when under examination under Article 17(2)(a) The physical presence of two women witnesses in Court at the time of their examination, with added facility of reminding each other on controversial issues, is opposed to the norm of cross‑examination, which is the only effective weapon to extract truth from hostile witnesses. (v) Document, not required to be attested by law, becomes amenable to attestation under Article 17(2)(a) if it involves financial or future obligation. An agreement to sell immovable property does not fall under Article 79, because of its not being required to be attested by law. It has been so held in PLD 1998 Lah. 390 and 1994 CLC 102. However, Supreme Court of Pakistan in 1998 SCMR 99 has held that since it involves financial or future obligation, therefore, it falls under Article 12(2)(a). (a) A Division Bench of Lahore High Court had also held the agreement to sell to fall under Article 17(2)(a) in PLD 1996 Lah. 367. A promissory note is not required to be attested by any law but because of the fact that it involves financial or future obligation, a Single Judge of Lahore High Court, following ratio of PLD 1996 Lah. 367, has held Promissory Note to fall under Article 17(2)(a) in 2000 YLR 2927. . The said precedents have, however, overlooked a Single Judge judgment reported in NLR 1994 AC 661, wherein it has been held that requirement as to attestation of promissory note prescribed in Article 17(2)(a), Qanun‑e‑Shahadat Order, 1984, would not override Negotiable Instruments Act, 1881, which does not require attestation of promissory note. On the authority of the said precedent, cheques and Hundis also do not fall under Article 17(2)(a). The law pertaining to them not only does not require attestation but rather, prohibits attestation. Qanun‑e‑Shahdat 1984, belonging to the realm of procedural law is to give way to substantive law. If substantive law does not require a document, even if it relates to financial or future obligation, to be attested, it cannot be said to be unproved for want of attestation. MR. JUSTICE MUHAMMAD BASHIR JEHANGIRI, CHIEF JL STICE OF PAKISISTAN Born on February 1, 1937 at Mansehra proper; Matriculated from M.L. High School, Lahore in 1953; passed F.A. and B.A. (First Class First) examination from Abbottabad in 1958 and 1960 respectively; did his L.L.B. from University Law College, Peshawar in 1962 and joined the Bar in (W.P. Judicial Branch) Examination, 1964 and appointed as Civil Judge on March 7, 1966, with a little delay due to war with India in 1965; Served at various stations as Civil Judge and Senior Civil Judge; Promoted as Additional District and Sessions Judge on July 6, 1974 and as District and Sessions Judge on October 24, 1974 at Mardan and later at Abbottabad on September 12, 1978; Served as Judicial Commissioner Northern Areas, Gilgit from June 26, 1979 to December 22, 1982; Worked as Special Judge; Customs, Taxation and Anti‑Smuggling (Central) N.‑W.F:P., Peshawar from March 12, 1983 till September 15, 1984; Served as Joint Secretary, Ministry of Justice and Parliamentary Affairs (Justice Division), Islamabad, from September 16, 1984 to September 30, 1988; Attended advance course in Public Administration and Development for 100 days at N.I.P.A. Lahore, in 1977 and also Shariah Course in the Shariah Academy, International Islamic 'University, Islamabad, from December 2, 4983 to February 26, 1984; Attendeq a 3‑month course on Prevention of Crime and Treatment of Offenders at Fuchu, Tokyo, Japan, in the year 1986 under the auspices of the United Nations Institute for Asia and Far East; * Participated as Member (Legal) of the Pakistani delegation in the U.N. sponsored Geneva Accords on Afghanistan held on April 4, 1988; . * Elevated as Judge of the Peshawar High Court on October 1, 1988; * Remained Member, Election Commission of Pakistan from 1993 to 1996; * Attended the World Law Conference, held in Argentina in the year 1993; * Elevated as Ad hoc Judge Supreme Court of Pakistan on February 22, 1995 and as Judge Supreme Court on March 30, 1996; * Represented the Chief Justice of Pakistan in the Chief Justices' Conference and the Law Asia Annual Meeting held, at Manila (Philippines), in August, 1997; Appointed as Acting Federal Ombudsman on February 7, 2000. In his capacity as Chairman of the Asian Ombudsmen Association presided over the 5th Conference of Asian Ombudsmen Association, held in Manila (Philippines) in July, 2000 and was re‑elected as President of the Asian Ombudsmen Association; Participated in the VII Conference of the International Ombudsmen Institute (IOI) held in Durban, South Africa from October 30 to November 2, 2000 and was elected as a Member of the Board of Directors of the IOI; Visited the Peoples Republic of China. for a week in the year 2000 at the invitation of the Minister of Supervision, Chinese counterpart of Ombudsman; Visited Tokyo in 2000 as Acting Ombudsman of Pakistan/President, Asian Ombudsmen Association and Seoul, South Korea in 2001 in the Board of Directors IOI Meeting; Ex Officio Chairman, Supreme Judicial. Council, Pakistan Law Commission, Federal Judicial Academy and President, Al‑Mizan Foundation; Acted as Chief Justice of Pakistan on various occasions during the absence abroad of the Chief Justice of Pakistan. Appointed as the Chief Justice of Pakistan with effect from January 7, 2002. MR. JUSTICE SARDAR MUHAMMAD RAZA KHAN, JUDGE, SUPREME COURT OF PAKISTAN Mr. Justice Sardar Muhammad Raza Khan son of Sardar Muhammad Yousaf Khan was born at Village Namli Maira of Abbottabad District on 10‑2‑1945. His father Sardar Muhammad Yousaf Khan was a businessman‑cum‑politician, who, a decade long Chairman of the Union Council, for his honesty, hard work and devotion to the cause of basic democracies and welfare of the people, was awarded Pride of Performance. Passed his Matriculation Examination in the year 1958 from Government High School No. 2, Abbottabad and graduated from Government College, Abbottabad in 1962. Thereafter; he joined University of the Punjab, got admission in the University through Forman Christian College, Lahore and did his Master's in Economics in the year 1965. Then joined Punjab University Law College and obtained LL.B. degree in the year 1967. Appeared in the competitive examination of PCS (Judicial Branch) in the year 1968 and was selected as Civil Judge by topping the list of candidates from N.‑W.F.P. Due to the abolition of 'One Unit' his services were transferred to the Province of N.‑W.F.P. Served as Civil Judge at three stations, whereafter in around December, 1973 was appointed as Senior Civil Judge. In May, 1976 he was promoted as Additional District and Sessions Judge and in July, 1979 as District and Sessions Judge. In the year 1985, while posted as Judicial Commissioner for Northern Areas, he was recommended for an extensive tour to United States of America to study the American Legal System, for which he left for the U.S.A. on 23rd of March, 1985. Again, in the year 1999, on the recommendation of Mr. Justice Ajmal Mian, the then Chief Justice of Pakistan, he went to Tokyo, Japan to attend a three months' training course on the topic of Corruption Among Public Officials'. During his career he remained posted as District and Sessions Judge at D.I. Khan, Mansehra, Abbottabad and twice at Peshawar, from 1984 to 1988 remained posted as Judicial Commissioner for Northern Areas at Gilgit. Last posting in the subordinate judiciary was under the Ministry of Law and Justice Division, Islamabad in his capacity as Special Judge, Customs, Taxation and Anti‑Smuggling, wherefrom he was elevated to the Bench on the 14th of December, 1993 as Additional Judge, Peshawar High Court. Was confirmed as Judge of Peshawar High Court in June, 1995. Was elevated as Chief Justice of Peshawar High Court on 25th of April, 2000, the oath of which office was taken on the 28th of April, 2000. Has been elevated as Judge, Supreme Court of Pakistan and took the oath of office on 10th January, 2002. MR. JUSTICE MUHAMMAD NAWAZ ABBASI, JUDGE, SUPREME COURT OF PAKISTAN Mr. Justice Muhammad Nawaz Abbasi was born in Murree; Primary Education from Government Middle School Sher Bagla, Murree; studied Secondary Education in Government High School, Murree; passed Secondary School Examination from Board of Intermediate and Secondary Education, Lahore in 1963; graduated from University of Punjab in 1967; did his LL.B in 1969; Diploma in Labour Laws from University Law College, Lahore in 1973. He joined legal profession and enrolled as an Advocate of subordinate Courts with Punjab Bar Council in 1973; was enrolled as Advocate High Court in 1975 and as Advocate Supreme Court in 1981. Took Shariah Course from International Islamic University, Islamabad in 1987. He discharged functions as Special Prosecutor (in Court of Special Judge‑Customs) from 1983 to 1985; was appointed Assistant Advocate‑General in March, 1985; was nominated as Prosecutor with (Special Court for Speedy Trials) in the High Court and also was deputed to conduct appeals before Supreme Appellate Court on behalf of Federal Government from 198'' to 1990. He conducted large number of Civil, Criminal and Constitutional reported and unreported cases and arbitration matter before International Arbitration Tribunal in Germany. He was Member Discipline Committee, Quaid‑i‑Azam University Islamabad, since 1986; was visiting Lecturer to Police Academy, Sihala, Muslim Law College, Rawalpindi, Customs Academy, Karachi and Federal Judicial Academy, Islamabad from 1987 to 1991. He was elevated as Judge of Lahore High Court in 1992. Mr Justice Abbasi remained Member of Administration Committee of Lahore High Court, Lahore and Chairman of the Tribunal constituted under Anti -Terrorism Act, 199 and Member Syndicate Bahawalpur University in 2000‑1. He was elevated as Judge of the Supreme Court on 10th January, 2002. MR. JUSTICE MIAN SHAKIRULLAH JAN, CHIEF JUSTICE, PESHAWAR HIGH COURT Mr. Justice Mian Shakirullah Jan graduated from Islamia College, Peshawar; obtained Law Degree from the Khyber Law College, Peshawar University in 1972; enrolled as an Advocate of the Lower Courts in 1973; Advocate of the High Court in 1975 and as an Advocate of the Supreme Court in 1980. Member of the Supreme Court Bar Association of Pakistan in 1993‑94 (elected unanimously); member of the Bar Council, N.‑W.‑ P., Peshawar for the period 1989 to 1993 and elected unanmmou1,iN as Chairman 0f Free legal Aid Committee of the Council for 1990: member of Enrolment Committee of Provincial Bar Council, N.‑W.F.P.; member of Legal Education Committee of Pakistan Bar Council in 1990; Secretary General of Peshawar High Court Bar Association for the. year 1987‑88 (elected unanimously); Vice‑President of Peshawar High Court Bar Association for the year 1986‑87 (elected unanimously); Secretary of Peshawar High Court Bar Association for the year 1979‑80 (elected unanimously) Secretary of Peshawar High Court Bar Association for the year 1984‑85 (elected unanimously): Vice‑President of Peshawar Bar Association for the year 1977‑78 (elected unanimously); Visiting Speaker for various Law subjects in the Provincial Services Academy, Peshawar; Part time Lecturer in the Frontier Law College, Peshawar; participated in the Shariah Course held by the Shariah Academy of International Islamic University, Islamabad in 1991; participated in the Study Tour to Saudi Arabia and Cairo (Egypt) under the auspices of Shariah Academy International Islamic University, Islamabad in 1992; participated in the Fourth Seminar for Developing Bar Association at Long Island, New York, U.S.A. as a representative of N.‑W.F:P. Bar Council in 1990; participated in the 23rd Biennial Conference at New York U.S.A. of International Bar Association as a representative of N.‑W.F.P. Bar Council, 1990; participated in the Law‑Asia Legal Aid Seminar Legal Aid a Human Right or a Favour' held in New Delhi, India, as a representative of N.‑W.F.P. Bar Council; Additional Advocate‑General from July, 1993 up to elevation to the High Court; elevated as an Additional Judge of Peshawar High Court on 13‑12‑1993 and confirmed as Judge of Peshawar High Court on 30th May, 1995; Election Tribunal for disposal of appeals relating to Constituencies of NA‑1, PF19 and PF‑20 (1997); Election Tribunal for disposal of Election Petitions pertaining to Hazara Division (1997); Company Judge for disposal of cases of N.‑W.F.P. except D.I. Khan and Abbottabad from 1997; Chairman of N.‑W.F.P. Subordinate Judiciary Service Tribunal from 1998; Member Syndicate of the N.‑W.F.P. University of Engineering and Technology, Peshawar from 1999; Chairman of the Tribunal of the N.‑W.F.P. Bar Council from 18‑1‑2000; appointed as Chief Justice of Peshawar High Court and took oath on 10th January, 2002.