1988 PLP 847 (MLD)

The petitioner filed a suit for a declaration that the registered gift deed dated 2‑3‑1977 relating to the plot in dispute measuring 1 kanal and 5 marlas purported to have been executed by Qadir Bakhsh, father of both the parties, in favour of respondent No. 1 was a result of fraud, misrepresentation and impersonation and did not bind the petitioner and he is joint owner in possession of the said plot to the extent of his share. The suit was contested mainly by respondent No. 1 while the other respondents virtually admitted that the said gift was factually and validly made by their father in favour of respondent No.1. The learned trial Court framed the following issues: (1) Whether the suit is not maintainable in its present form? OPD (2) Whether the valuation of the suit for the purposes of court‑fee and jurisdiction is incorrect, if so, what is correct valuation for both the purposes? OPD (3) Whether the plaintiff has no cause of action OPD (4) Whether the plaintiff is estopped by his words and conduct to institute the present suit? OPD (5) Whether the plaintiff is owner in possession of the disputed plot to the extent of his due share as legal heir of deceased Qadir Bakhsh and the registered gift deed No. 227, dated 2‑3‑1977 pertaining to the disputed plot is result of fraud, misrepresentation, is not binding and effective on the hereditary rights of the plaintiff? OPP (6) Relief. The issues were decided against the petitioner and the suit was dismissed by the learned Civil Judge 1st Class, Okara. The petitioner filed an appeal which was dismissed by the learned Additional District Judge III, Okara, vide judgment dated 7‑12‑1985. This revision petition has been filed to challenge the said judgments and decrees. I have perused the record : Ad have heard the learned counsel for the petitioner.

2. The question as to whether the gift deed Exh. D.W.1/1 was executed by Qadir Bakhsh deceased, father of both the parties, is a question of fact and has) been decided concurrently by the learned Courts below in favour of respondent No.1. There is hardly any scope for differing with their concurrent fin' dings. However, learned counsel for the petitioner has raised a law point in regard toy the said question of fact and I would like to deal with the same. He has stated that it is a requirement of Islamic Law that such a gift deed made and executed by a donor should be attested/witnessed by at least two male witnesses or by one male witness and two female witnesses. He has argued that in view of the law laid B down is Mst. Hamida Begun v. Mst. Murad Begun and others (P L D 1975 S C 624) the Islamic Law of evidence will apply for proving the gift in dispute. That case related to the legitimacy of a child and does not, therefore, so clearly apply to the fads of tae case in hand. However, I agree with the learned counsel for the petitioner that in view of the law laid down therein even for a gift made by a Muslim the Islamic Law of evidence will apply. He has argued further that on the basis of para. 4 of Chapter fl (page 20) of the Islamic Law of Evidence by Abdul Malak Irfani, for proving of a gift the evidence of two male persons or one male person and two women is necessary. He argues that as witnesses in such a number were not produced in the case the making of the gift in favour of respondent No.1 was not proved. He also contends that in view of this very provision of Islamic Law the gift deed is not a valid document as it has not been witnessed by such a number of witnesses. Generally the law of evidence for drawing up of a document and for proving of a document is quite so. However, that is not the sine qua non for every case. The Islamic Law of evidence is rigid only in cases of Hudood and is not so rigid in other cases. It is rigid for awarding of Aadd punishment because according to the interpretation of Islamic principles of law the imposition of Hadd punishment need be avoided. However, for determination of civil rights there is no such rigid rule because justice is to be done between individuals on the basis of the evidence available with the parties so much so that where in a case there is no evidence at all the case can be decided on the oath of one of the parties in the given mode or on Half‑e‑Radd. In paras 8 and 9 of pages 28 and 29 of the same chapter of Irfani's said book cases have been discussed where there is only one witness or where there is no witness. Therefore, it is wrong to say that a case must fail where the document is not witnessed by two male witnesses or one male witness and two female witnesses or where such number of witnesses is not produced before the Court. It is with this background that the evidence on record has to be examined. The gift deed was scribed by one person and the donor was identified before the Registrar by another person, namely Abdul Ahad, Advocate. As such for meeting the requirement of Islamic Law of evidence there were two witnesses of the gift deed i.e. the scribe and the identifier. Apart from that the Registrar who registered the gift deed also became a witness to the same because it was he who read over the gift deed to the donor and who attested the same after fully satisfying that the gift had been made by the donor. Therefore, it cannot be said that Exh. D.W.1./1 was not witnessed by two male persons. In fact, it was witnessed by the requisite number of witnesses. Out of the said witnesses only Abdul Ahad, Advocate appeared as D.W.1, who is an independent witness and has no reason to wrongly support the case of respondent No.1 or to falsely depose against the petitioner. He is a reliable witness and is a person on whose testimony alone the case can succeed without any further support. ,

3. My above discussion regarding the application and interpretation of Islamic Law of Evidence finds support and gains strength from the law laid down in Abdul Hameed v. the State (1986 S C M R 11), Malik Aman v. The State (1986 S C M R 17) and Sohail Amjad v. The State(1986 S C M R 1482).

4. It may be added that in this case the evidence of D.W.1 is supported by the factum of registration which is very well proved from the endorsement of the Registrar on Exh. D.W.1/1. Further, the evidence of D.W.2, who is a brother‑in -law of the parties, and of D.W 3, who is a brother of the parties, goes a long way is proving the gift. Therefore, whether the case is judged by the Islamic Law of evidence or by the general law of evidence the making of the gift by Qadir Bakhsh in favour of respondent No.1 is proved to the hilt.

5. These are the only contentions on which the making of the gift is challenged before me. There is no illegality or irregularity in the judgments and decrees of the learned Courts below. The revision petition is dismissed in limine. S.Q./R‑79/L Petition dismissed.