2015 PLP 2470 (YLR)

MUHAMMAD DAUD KHAN, J.- Through this Petition, the petitioner, Ahmad Zamir, has challenged the judgments and decrees of the learned Civil Judge-I, Bannu, dated 30-10-2010 and of learned Additional District Judge-II, Bannu, dated 12-9-2011 vide which both the learned courts dismissed the suit of petitioner/plaintiff.

2. Brief facts of the case are that the petitioner/plaintiff (hereinafter called as "the petitioner") had filed a suit for declaration cum perpetual injunction about the property entered in Khata No.249 measuring 02 Kanals 01 Marla and 03 Sersai to be his ownership as a gifted property through, (Hiba Nama) dated 29-9-2005, from Ahmad Zamir. He had also claimed the possession of 6-1/2 Marlas house situated in Fatima Khel.

3. On the other side Shazamir Khan (hereinafter called as 'respondent') also filed a suit of same nature over the same property against Ahmad Zamir and challenged the above gift deed, dated 29-9-2005, claiming his ownership, as devolved upon him through inheritance Mutation No.2139 dated 27-1-2006.

4. Both the rival suits were consolidated as both the parties challenged the title of ownership over the same property. On divergent pleadings of the parties, learned trial court framed the following issues. ISSUES. (1) Whether the plaintiff has got the cause of action? OPP (2) Whether the plaintiff Ahmad Zamir is the owner of the suit property on the basis of "Hiba Nama" dated 29-9-2005, if so, then its affects? OPP (3) Whether the Mutation No.2139 has been rightly attested in favour of legal heirs of deceased Jehan Mir and "Hiba Nama" dated 29-9-2005 is illegal, against law and facts? OPD (4) Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD (5) Whether the suit of the plaintiff is incompetent in its present form? OPD (6) Whether the plaintiff is entitled for the decree as prayed for? (7) Relief.

5. On conclusion of trial, after hearing the learned counsel for the parties, the learned trial court dismissed the suit of the petitioner/plaintiff and decreed the suit of Shazamir respondent vide its consolidated judgment and decree dated 30-10-2010.

6. The appeal preferred by the petitioner was also dismissed vide judgment and decree of learned Appellate Court dated 12-9-2011.

7. Dissatisfied with the concurrent judgments and decrees of both the subordinate courts, the petitioner challenged the same through the instant Revision Petition.

8. Mr. Zafarullah Khan, learned counsel for the petitioner contended that factum of gift by Jehan Mir through gift deed, dated 29-9-2005, was proved through statement of witnesses under Article 17 and 79 of Qanun-e-Shahadat Order, 1984. According to the learned counsel, by dismissing the suit of petitioner both the subordinate courts failed to appreciate the evidence produced by the petitioner.

9. Conversely, Haji Muhammad Fayyaz Khan, the learned counsel for the respondent contended that the alleged gift deed dated 29-9-2005 (Exh.P.W.1/1) was not proved in accordance with law. He submitted that out of the two marginal witnesses, only one witness appeared as P.W.3. Hence by virtue of the provision of Articles 79 read with 17 of Qanun-e Shahadat Order, the deed could not be used as evidence.

10. Arguments of the learned counsel for the parties heard and record perused with their assistance.

11. The main contention of the learned counsel for the petitioner is that the gift deed is duly proved by the evidence of scribe (P.W.1) and one marginal witness Ajmal Khan (P.W.3) and the petitioner himself. The petitioner produced Umer Ayaz Khan as P.W.1. He had authored the gift deed on 29-9-2005. He claimed to have written this document in the kachehri, (District court's premises) but unable to tell the time of writing the alleged deed. He did not utter a single word to the effect that Ahmad Zamir or any other marginal witness signed the document before him. This witness also kept mum about signature of the marginal witnesses signed before him or not. The witness neither stated any word regarding the acknowledgement of the gift nor execution of said deed by Jehan Mir. He admitted in cross-examination and wrote in the said deed that Jehan Mir was suffering from paralysis and was bed ridden. In the alleged gift deed, two witnesses were shown as attesting marginal witnesses, but plaintiff produced only one witness namely Ajmal Khan as P.W.3, while other attesting witness Hassan Mir did not appear to prove the deed. Moreover, this_ scribe has also not put his signature as an attesting witness of the said document, so the evidence of this scribe in the capacity of a writer could not fulfill and meet the mandatory requirement of attesting witness under Article 79 of the Qanun-e Shahadat Order, which is reproduced below for ready reference:-- 79- "Proof of 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." The above provision lays down that 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 court and capable of giving evidence. Thus under this Article the attested document could only be used as evidence when the two attesting witnesses have proved its execution. On scanning of the evidence regarding the execution of the gift deed Exh.P.W.1/1, it appears that it is unregistered deed written on stamp paper worth 40 rupees. The evidence of scribe of gift deed is to the extent of writing of the alleged deed but is silent about the signature and attestation of marginal witnesses. The Hon'ble Supreme Court of Pakistan in the case "Mst. Kulsoom Bibi v. Muhammad Arif' reported in (2005 SCMR 135) while considering implication of Article 79 of Qanun-e-Shahadat Order, 1984, has observed:-- "It may be clarified at this juncture that marginal witness of a document are produced not merely to identify the signature of an executants but are examined to prove, in addition to the above fact, that the executants had put the signature within their view. Both witnesses never uttered a single word to the effect that Muhammad Fazal had signed the document written their view. This is with regard to the document." It was also held in case titled "Nazir Ahmad and others v. Muzaffar Hussan" reported in (2008 SCMR 1639) that:-- "Attesting witness was the one who had not only seen the document being executed by the executants but also signed same as a witness- person who wrote or as 'scribe' of a document was as good a witness as any body else, if he had signed the document as a witness. No legal inheritent in the competency existed in the writer of a document to be an attesting witness to it." This principle of law has further been reiterated by the Apex Court in the case "Tassaduq Hussain v. Muhammad Din (PLD 2011 SC 241) wherein it has been held:-- "Therefore, in my considered view a scribe of a document can only be competent witness in term of Articles 17, 79 of 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 fulfill and meet the mandatory requirement of attestation by him separately, , however, he may be examined by the concerned party, for corroboration of the evidence of the marginal witness, or in the eventuality those are conceived by Article 79 itself not as a substitute."

12. The respondent Shazamir, apart from the Patwari Halqa and himself, produced Zamirullah, Record Keeper National Bank as DW-2. He brought opening form of account of Jehan Mir deceased as Ex:DW2.1 and one Zainuddin, record clerk of record room District Courts, as DW-3. He produced certain documents of previous litigation as Ex:DW 3/1 to Ex:DW 3/3, to prove that the deceased Jehan Mir, in his life time, used to put signature on all the documents, but in the disputed gift deed thumb impression was shown by the Jehan Mir. Moreover, gift deed was shown to be executed on 29-9-2005, at the seat of scribe in Court premises, which used to be closed after Court timing under normal circumstances, whereas Meher Gul Khan Incharge District Head Quarter Hospital Bannu, examined as DW5, who produced register of admission of patients, which reveals that the said Jehan Mir was hospitalized and admitted for hepatitis treatment on 27-9-2005 and was discharged on 29-9-2005, evening time 05.45 p.m., when the Court premises were certainly closed. This fact negated the claim of the petitioner that the deed was executed by the deceased Jehan Mir at District Court premises on 29-9-2005. In presence of this documentary evidence, the conclusion is not far to seek that the alleged gift was neither executed nor thumb-impressed by Jehan Mir. The petitioner in the instant case has failed to prove through cogent and reliable evidence, regarding the offer of the gift by the deceased, its acceptance and in this regard, delivery of possession of the suit property in favour of the petitioner, which are necessary requirements for a valid gift. The Hon'ble Supreme Court of Pakistan in the case titled "Ghulam Haider v. Ghulam Rasool and others"(2003 SCMR 1829), held that essentials of valid gift are required to be proved independent of a deed even if it was registered, in case it is challenged on ground of fraud, forgery, etc. In the instant case, petitioner has failed to prove his claim through cogent gift deed documents.

13. As far as the other suit filed by Shazamir for declaration for the ownership of the said property is concerned, admittedly, Jehan Mir was issueless, Shazarnir, Hassan Mir and Mst. Sari, were alive at the time of opening of the legacy of the deceased. The legacy of the deceased was rightly devolved through inheritance Mutation No.2139 dated 27-1-2006 according to Sharia.

14. Both the learned courts below have rightly dismissed the suit of the petitioner and decreed the suit of respondent No.2 by rightly appreciating the evidence in its true perspective, which needs no interference in concurrent findings of facts recorded by both the courts below, under revisional, jurisdiction of this Court.

15. In view of the above, this petition being meritless is decided against the petitioner and dismissed with no order as to costs. ZC/126/P Revision dismissed.