2015 PLP 394 (SCMR)

AMIR HANI MUSLIM, J.

Civil Appeal No. 543 of 2008

1. Pursuant to the order dated 16-5-2014 in Civil Appeal No.543 of 2008, the honourable Chief Justice has constituted larger Bench to examine conflicting views of this Court in the case of Akbar Ali v. Muhammad Abdullah (2007 SCMR 1233), Abdul Khan v. Ramzano Bibi (PLD 2013 SC 193) and Mukhtiar Ali alias Mumtaz Ali and others v. Mumtaz Ahmed and others (2007 SCMR 221). The conflict between the aforesaid judgments was whether it was necessary to produce both the attesting witnesses in a pre-emption case to prove validity of Talbs in terms of section 13(3) of Punjab Pre-emption Act, 1991 and whether the provisions of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 requiring two attesting witnesses to prove execution of a document has nexus in a pre-emption case in terms of the language of section 13(3) of the Punjab Pre-emption Act, 1991.

2. We have examined the findings recorded by this Court in the aforesaid judgments and we are of the considered view that the conclusion reached in the case of Mukhtiar Ali alias Mumtaz Ali and others v. Mumtaz Ahmed and others reported in (2007 SCMR 221) by the honourable Judges was not in conformity with the language of section 13(3) of the Punjab Pre-emption Act, 1991. In order to prove Talb-i-Ishhad, two truthful attesting witnesses, independent of the person, issuing and or sending notice, are required to be examined to prove the factum of Talb-i-Ishhad. Besides, the execution of a document could only be proved by examining two attesting witnesses of the document as provided by the Article 79 of the Qanun-e-Shahadat Order, 1984.

3. In the aforesaid appeal, the appellant having examined only one attesting witness against the mandate of section 13(3) of the Punjab Pre-emption Act, 1991, consequently, he failed to prove validity of Talb-i-Ishhad. This appeal for the aforesaid reasons is dismissed. Civil Review Petition No.125 of 2013

1. The petitioner has sought review of the judgment of this Court passed in Civil Petition No.554-P of 2010, inter alia, on the ground that the petitioner has examined two witnesses at trial and claimed to have proved the Talb-i-Ishhad, in terms of section 13 of the N.-W.F.P. Pre-emption Act, 1987. We have dealt with this issue in paragraph 9 of the judgment under review and held that scribe who was examined with one attesting witness cannot be construed to be an "attesting witness" in terms of section 13 (ibid). The provision of section 13 specifically requires that to prove a valid Talb-i-Ishhad, two truthful attesting witnesses are required to be examined, which excludes scribe.

2. Even otherwise, Article 79 of the Qanun-e-Shahadat Order, 1984, provides that the execution of a document can only be proved by producing two attesting witnesses of the document. The contention of the learned counsel for the petitioner has already been dealt with in paragraph 12 of the judgment under review and the petitioner in review petition has attempted to re-agitate the issue already decided by this Court.

3. The learned counsel for the petitioner next contended that the petitioner had raised legal issues in Appeal and while passing the judgment under review, the Court has burdened the petitioner with costs throughout. According to him, in such like cases, this Court does not penalize a party with costs.

4. We have heard the learned counsel and have perused the record. The petitioner has failed to make out a justifiable ground for review of the judgment, therefore, the review petition is accordingly dismissed. However, the costs imposed upon the petitioner is withdrawn. MWA/M-5/SC Order accordingly.