Miran Bakhsh vs Muhammad Ismail etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, D.I.KHAN BENCH

(Judicial Department)

CR No. 141-D of 2014

JUDGMENT

Date of hearing 10.09.2015

Appellant-petitioner (Miran Bakhsh) by Mr. Abdul Qayyum Qureshi Advocate

Respondent (Muhammad Ismail and others) by Mr. Zainul Abideen Advocate

MUHAMMAD GHAZANFAR KHAN, J.- Through the instant revision petition, the petitioner has called in question the judgment/order dated 24.3.2014 of learned Additional District Judge-II, D.I.Khan whereby appeal of the petitioner against the order dated 13.7.2013 of learned Civil Judge-VI, D.I.Khan was dismissed.

2.The facts giving rise to the instant revision petition are that one Wazir Khan, brother of petitioner filed a suit for recovery of Rs.4,90,000/- against one Mohammad Younis, brother of respondents which was decreed on 22.10.2005. Wazir Khan filed execution petition. Respondents appeared and filed an objection petition which, after contest, was accepted by the learned Executing Court vide order dated 13.7.2013.

3.Dissatisfied with the order dated 13.7.2013, the petitioner preferred an appeal which was dismissed by the

learned appellate Court vide order dated 24.3.2014, hence the instant revision petition.

4.Learned counsel for the petitioner contended that there was a legal and valid decree passed in favour of predecessor of petitioner against Mohammad Younis son of Haji Mohammad Abid for recovery of Rs.4,90,000/-, which, has neither so far been challenged by the decree holder nor any of his legal heirs or the present respondents, so, he maintained that this decree has attained finality and after the passage of decree, the present petitioner filed execution petition and during pendency of execution petition, the present respondents moved an objection petition alleging therein that they have purchased the suit house and shop from judgment debor. He further argued that the documents i.e. an agreement to sell and the receipt of payment of money, on the basis of which the objection petition was maintained/accepted by the executing Court and further fortified by the appellate Court are unregistered, thus neither confer any title nor are admissible in evidence, so, both the Courts below have erred in facts and law by allowing objection petition. He, at the end, solicited for dismissal of the objection and setting aside of orders of both the Courts below.

5.On the contrary, learned counsel for the respondents argued that as the petitioner was neither

judgment debtor nor was a party to the suit, therefore, stricto senso application of Articles 17 and 79 of Qanun-e- Shahadat Order could not be applicable to his case. He further argued that as wife of the judgment debtor and her statement before the Court has confirmed the validity and execution of sale deed, therefore, no witness was required to prove the existence of bainama/agreement deed.

6.I have heard the arguments of learned counsel for the parties and have gone through the record with their valuable assistance.

7.It is settled principle of law that the execution of a document containing fiscal matters and future obligations is to be attested by two truthful witnesses and to prove the execution of such document, witnesses have to be produced before the Court. In the instant case, no doubt both the marginal witnesses are reported to be dead, but the mode of proving in such like cases was to lead secondary evidence like comparison of their signature/thumb impressions with the deeds or documents on which they impressed their thumb or signed the same which are admitted. Secondly, the objectors were required to prove the signatures of dead witnesses through identification of their signatures from anyone of their relatives like son, brother etc. Here in this case the signatures of attesting witnesses have not properly been

identified. The transaction was compulsorily registerable but it has not yet been registered and it is another question that whether unregistered document creates any title or has any evidentiary value. It is more than settled law that when a thing is provided to be done in a particular manner, it must be done in that particular manner and if done otherwise, will be a nullity in the eye of law. All these aspects were not considered by the Court below while deciding the lis in hand. In the instant case, the document has been attested by oath commissioner but he has not been produced as a witness. Similarly, Mohammad Ismail himself has also not appeared to testify the authenticity of document relied upon by him. In a case reported as 2005 SCMR 152, their lordships have held that:- “Reverting to the production and exhibition of said document, it was incumbent upon the appellant to examine attesting witness Syed Azizul Hassan Notary Public to prove its execution, as according to the appellant himself, this document was written in the City Courts. Non-production of this witness to prove the contents of the document was fatal to the case of the appellant with the legal consequence that the recitals of this document cannot be said to have been proved in terms of Article 78 of Qanun-e- Shahadat 1984. It was stated at the Bar that the attesting witness had died before his evidence could be recorded at the trial but mere statement would not exonerate the appellant of his legal obligation to prove the contents of a disputed document. This fact should have been pleaded before the trial Court and having established non- availability of the witness by reason of his death, steps should have been taken to adduce secondary evidence with the leave of

the Court. Simply because no objection was raised to the production of document would not render the document as proved.”

In such eventuality, both the Courts below have committed material illegalities apparent on the fact of record.

8.For the reasons mentioned above, the instant revision petition is accepted, the judgments/orders of both the Courts below are set aside and the case is remanded to the learned executing Court for decision of the objection petition afresh by considering the validity of an unregistered document and its effect on the lis, non- production of attesting witnesses or secondary evidence and its effect on the suit and whether the compliance of legal provisions contained in Qaunun-s-Shahadat regarding proof of document have been fulfilled or not.

Announced.

Dt:10.9.2015.

Habib/* JUDGE