2002 PLP 3514 (YLR)

‑‑‑‑Art. 140‑‑‑Contradiction with reference to previous statement of witness‑‑‑Article 140 of Qanun‑e‑Shahadat, 1984 had mandatorily provided that in case a witness was to be contradicted with reference to his previous statement, said statement would have to be put to the witness in witness‑box. Atta Muhammad represented by Legal Heirs and others v. Matloob Alam Khan 1996 SCMR 601 and Syed Qamar Ahmad and another v. Anjum Zafar and others 1994 SCMR 65 ref. M. Sarwar Rana for Petitioners. M. Farooq Qureshi Chishti for Respondents. Date of hearing: 11th March, 2002. On 16‑5‑1985, the respondents filed a suit against the petitioners. In the plaint it was stated that the suit‑land mentioned in the heading of the plaint was owned by Muhammad Hussain son of Ghulam Hussain, a brother of the respondents who made a will on 1‑5‑1984 in their favour in respect of the said land; that after the death of the said Muhammad Hussain, the said land was mutated in favour of the respondents vide a Mutation No.321 attested on 30‑9‑1984. However, on appeal the case was remanded and thereafter the mutation was attested on 5‑5‑1985 excluding the petitioners. They claim to be donees under a valid Will and as such to be owner of the said land. The petitioners in their written statement denied the execution of Will by the said Muhammad Hussain on the ground that on 1‑5‑1984 i.e. the date of the will, Muhammad Hussain being a cancer patient was suffering from "Marz‑ul‑Maut". Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit vide a judgment and decree dated 13‑12‑1993. A first appeal filed by the petitioners was dismissed by a learned District Judge, Khushab on 3‑4‑1995.

2. The learned counsel for the petitioners argues that it stands proved on record that the deceased was suffering from "Marz‑ul‑Maut" when he made the will. According to the learned counsel this circumstance would render the Will void. Further contends that the evidence on record has been misread. Tries to explain that the statement made by Mst. Sattan (one of the respondents) Exh.D.1, could have been referred to for the purposes of contradicting her statement. The learned counsel for the respondents, on the other hand, supports the impugned judgment and decree, with reference to the evidence on record.

3. I have gone through the copies of the record appended with this civil revision, with the‑assistance of the learned counsel for the parties. Copy of the will available on record is Exh.P.1. The learned counsel stated that the original was produced on the record of the learned trial Court. According to this document Muhammad Hussain states that there is a tumur in the abdomen of the donor and he is to be operated upon and‑is admitted to the hospital and as such he makes a will that out of 60 Acres of land owned by him 20 acres would go to the said three sisters and a daughter, namely, Shamim Akhtar in equal shares i.e. 5 Acres each while the remaining 40 Acres of land and all other assets would be managed by his wife Mst. Khatoon but in case on her death or re‑marriage, the same shall vest in Pakistan Army. Then he states that his son Mulazam Hussain, wife Sarwer Khatoon and daughter A.A Khan are disobedient and that he disinherits them. This document was executed on 1‑5‑1984 and is witnessed by Dr. Tahir Mehmood, Muzaffar son of Sahara, Malik Muzaffar and Ghulam Muhammad. The said Dr. Tahir Mehmood has appeared as P.W.1. Malik Muzaffar has appeared as P.W.2. The scribe Muhammad Siddique has appeared as P.W.3. I have carefully examined the statements made by these witnesses. Except the fact that whereas Dr. Tahir Mehmood stated that the document took more than one hour to be completed. Malik Muzaffar stated that the document was completed in 10/20 minutes: There is nothing else. derogatory to the statement made by these witnesses to the effect that the deceased had made and executed the said will. So far as the said discrepancy inter se the statements of P.W.1 and P.W.2 is concerned, both the learned Courts below have treated the same as a natural variation and I am not inclined to differ after having read the entire statements of the said witnesses.

4. Coming to the said contention of the learned counsel, I find no force in the same. Needless to state that the doctrine of "Marz ul‑Maut" is relevant in the case of gifts and in such cases also even if it is found that gift was made during "Marz‑ul‑Maut" then the whole gift is not void rather it takes effect as a will. No gain saying the fact that the Will is a document which by itself takes effect after the death of the executor and the fact that the deceased was on the death bed would not at all derogate from the validity of the same. Besides, I find that there is no plea that the deceased was not in a sound state of mind. All the witnesses produced by the petitioners have stated without any demur that they never visited the deceased while he was in the hospital.

5. As to the said second contention regarding the previous statement of Mst. Sattan. According to the learned counsel the said Mst. Sattan appeared as D.W.1 in a case on 3‑11‑1991 (a copy of the statement is Exh.D.1) and stated therein that Muhammad Hussain had not made a Will. Now I find that the said Mst. Sattan (in fact) appeared as a witness in the present case on 20‑11‑1991. She was not at all confronted with the said document i.e. the previous statement. Now Article 140 of the Qanun‑e- Shahadat Order, 1984 makes it mandatory that in case a witness is to be contradicted with reference to a previous statement, then the said statement shall have to be put to the witness in the witness‑box. This is also the ratio of the judgment of the Honourable Supreme Court of Pakistan in case of Atta Muhammad represented by Legal Heirs and others v. Matloob Alam Khan (1996 SCMR 601) and Syed Qamar Ahmad and another v. Anjum Zafar and others (1994 SCMR 65). The learned counsel then tried to argue that the petitioners were not aware of the said statement. I am afraid this plea is incorrect. Exh.D.1 clearly shows that the statement was made in a case to which the three sisters i.e. the respondents on the other hand and the present petitioners on the one were parties. It is, therefore, not to be believed that the petitioners were not aware of the said statement having been made by Mst. Sattan on 3‑11‑1991.

6. The learned counsel for the petitioner then contends that the Will has also been made in favour of a daughter and the widow. Needless to state here that the said Will has not taken effect qua the said daughter and the widow. But has taken effect only with respect to the respondents who were not heirs of the donor at the time of making of the Will. Be that as it may, it is clarified that barring said 15 Acres of land which has been validly Willed in favour of the respondents/sisters of the deceased, the remaining estate of the deceased shall go to his two widows one son and two daughters in accordance with their Muslim Law shares. With these observations, the civil revision is dismissed, leaving the parties to bear their own costs. H.B.T./S‑435/L Revision dismissed.