P L D 2022 Balochistan 30 (PLP)

ABDUL HAMEED BALOCH, J.

The petitioner/plaintiff assailed judgments and decrees dated 22nd March, 2018 and 31st July, 2019 (impugned judgments and decrees) passed by Senior Civil Judge-IV, Quetta and Additional District Judge-I, Quetta (trial and appellate court), whereby the suit filed by the petitioner/plaintiff was dismissed and appeal filed by the petitioner/ plaintiff also met with the same fate.

2. Precise facts of the case are that the petitioner/ plaintiff filed a suit for declaration, specific performance of agreement dated 11.7.2013, partition, possession, mesne profit and permanent injunction against the respondents/ defendants in the court of Senior Civil Judge-IV, Quetta, which was contested by the respondent/ defendant No. 1 as well as respondents/ defendants Nos. 2 and 3 on legal as well as factual grounds by filing separate written statements. The trial court framed issues out of the pleadings of the parties. The parties to the lis produced pro and contra evidence and on conclusion the learned trial court vide judgment and decree dated 22nd March, 2018 dismissed the suit. Being aggrieved the petitioner/ plaintiff approached Additional District Judge-I, Quetta by filing appeal, but same was also dismissed vide judgment and decree dated 31st July, 2019, hence this revision petition.

3. Heard and perused the record. As per plaint the petitioner/ plaintiff sought specific performance of agreement dated 11th July, 2013. In order to substantiate the contention, the petitioner/plaintiff produced five witnesses and got recorded his statement on oath. The petitioner/ plaintiff got exhibited the agreement regarding distribution of property through petition writer (PW-2) as Ex: P/1. As per Ex: P/1 the properties mentioned in the agreement had been distributed and handed over to the parties meaning thereby that each party is in possession of his share in accordance with the agreement. The case of the petitioner/plaintiff is not that after distribution the share of the petitioner/plaintiff has been forcibly taken into possession by defendant No.1. Even otherwise the petitioner/plaintiff was under legal obligation to prove the alleged agreement Ex: P/1 according to law. Under Article 79 of the Qanun-e-Shahadat Order, 1984 (Order 1984) the document is required to be attested. It shall not be used as evidence until two attesting witnesses have been called for the purpose of proving the execution. No document can be read as evidence unless two marginal witnesses testify. The party who relied on the document it is mandatory upon him to prove the contents of the document by examining two witnesses. The requirement of marginal witnesses is sine qua non not merely to identify signature of executant but to prove that the executant had put signature before the witness(s). Statement of scriber does not equate the testimony of attesting witness(s). Reliance is placed on case Farid Bakhsh v. Jind Wadda 2015 SCMR 1044, wherein it was held: "

8. 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 provides that a document required to be attested shall 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 and equating the testimony of a Scribe with that of an attesting witness would not only defeat the letter and spirit of the Article but reduce the whole exercise of re-enacting it to a farce. We, thus, have no doubt in our mind that this Article being mandatory has to be construed and complied with as such. The judgments rendered in the cases of Imtiaz Ahmed v. Ghulam Ali and others and Jameel Ahmed v. Late Safiuddin through Legal Representatives (supra) have therefore no relevance to the case in hand. Reference to the judgment rendered in the case of Nazir Ahmed v. Muhammad Rafiq (1993 CLC 257) (supra) cannot help the appellant when it being against the terms and meanings of the Article is per incuriam. The case of Jagannath Khan and others v. Bajrang Das Agarwala and others (supra) too will not help the appellant when production of two attesting witnesses was not a requirement of the law then in force. The argument addressed on the strength of the judgment rendered in the case of Dil Murad and others v. Akbar Shah (supra) has not moved us a bit when the appellant failing to call the other 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), this 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.

9. Another reason for not equating the testimony of a Scribe with that of an attesting witness is that both of them signed the document in a different capacity and with a different state of mind. They, as such, do not meet the requirements of Article 79 of the Qanun-e-Shahadat Order. Scribe, however, could be examined by the party for corroboration of the evidence of the attesting witnesses but not as a substitute therefor. 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."

4. Now adverting to the testimony of petitioner's/plaintiff's witnesses. The petitioner/plaintiff produced two private witnesses. PW-4 has not narrated a single word regarding Ex: P/1. The witness is neither attesting witness of the alleged agreement nor present at the time of purchase of shop at Mission Road. The witness in cross-examination stated as under:

5. PW-5 Abdul Samad has also not stated anything in regard of agreement Ex: P/1. The witness had no knowledge that the property was father of the parties. In cross-examination the statement of the witness is self-contradictory. The witness in cross-examination stated as under:

6. The plaintiff in cross-examination replied as under:

7. It appears from the record that the Shop No. 16 situated at Mandokhail Shopping Centre was purchased by respondent/ defendant No. 1 from one Raja Ghazanfar Ali on 17th April, 2012 through registered sale deed which was registered on 30th April, 2012 in the office of Sub-Registrar Quetta. DW-3 Abdul Malik representative of Sub-Registrar Quetta produced sale deed consisting of four pages as Ex: D/3-A. The petitioner/ plaintiff claimed share of property on the basis of verbal assertion is even without producing cogent confidence inspiring evidence. It is settled proposition of law that documentary evidence cannot be rebutted orally. Documentary evidence should be rebutted through document. The documentary evidence has preference over oral evidence. The respondents/defendants produced registered sale deed which cannot be refuted by shaky, inconsistent oral evidence. It is settled principle of law that the registered sale deed has always preference over oral evidence. In Tahir Hussain Malik's case 1995 SCMR 1407, the Honorable Supreme Court held that "it is by now settled that the registered document has sanctity attached to it and strong evidence required to cast aspersion on its genuineness." There is no evidence worth to mention on the file to show that the such deed was forged and fictitious. The petitioner/ plaintiff failed to produce any document to rebut the registered sale deed. In case Shamshad v. Arif Ashraf Khan 2010 SCMR 473, the Honorable Supreme Court held that "oral evidence cannot be given preference over documentary evidence".

8. Under Article 117 of the Qanun-e-Shahadat Order, 1984 the burden of prove lies on the person who raised the same and not on the opposite party. The party was to discharge his burden on his own leg to succeed. It is settled proposition of law that when a party alleged specific factual point then the party is under legal obligation to prove the same by evidence. Reliance is placed on case Habibullah v. Mir Manzoor Hussain, 2014 MLD 303.

9. The scope of revisional jurisdiction of High Court is limited and confined to correction of jurisdictional defect, patent illegality/ irregularity affect the merit of the case and not for substantiating its own finding. Normally High Court could not disturb the concurrent findings on factual controversy arrived by the fora below until and unless the impugned judgments were based on misreading or non-reading of evidence. Reliance is placed on case Mst. Zaitoon Begum v. Nazar Hussain 2014 SCMR 1469, wherein it was held: "

20. Even otherwise, this Court in the case of Kanwal Nain v. Fateh Khan (PLD 1983 SC 53) has held that concurrent findings of two Courts below are not open to interference in limited revisional jurisdiction of the High Court, albeit, it may be, to some extent, erroneous on point of fact and on point of law, both.

21. Keeping in view the above principle, the principles of reappraisal of evidence by the Supreme Court are more stringent, unless and until, it is established that the two Courts below, including the High Court, have grossly misread or non-read the material evidence and the impugned judgments and decrees are perverse, causing serious miscarriage of justice, the Supreme Court would exercise extra-ordinary restraints, to interfere in it so lightly, as was suggested at bar." In view of above the instant revision petition being devoid of merit is hereby dismissed. The judgments and decrees dated 22nd March, 2018 and 31st July, 2019 passed by Senior Civil Judge-IV, Quetta and Additional District Judge-I, Quetta respectively are upheld. No order as to cost. ZH/151/Bal. Revision dismisse