Mr. Justice Ali Akbar Qureshi in his judgment has decided the issue regarding compulsory requirement of two attesting witnesses for proof of execution of document in Regular Second Appeal No. 29 of 2008.
1. This regular second appeal is directed against the judgment and decree dated 01.02.2008 passed by the learned appellate court whereby the appeal filed by the respondent was accepted and judgment and decree dated 24.02.2005 was set aside.
2. The predecessor of the appellants instituted a suit for declaration contending therein, that he is the owner of the suit property and the gift deed made by the respondents is product of fraud and misrepresentation as the respondents by playing fraud got his thumb impression on blank papers on the pretext to obtain a tractor but subsequently it was made a gift and by this way usurped the suit land owned by him. Lastly prayed that the gift deed No.129 dated 10.04.1999 be declared illegal/unlawful, product of fraud and misrepresentation.
3. The respondents who are legal heirs of the predeceased son of the predecessor of the appellants appeared before the learned trial court, controverted the averment of the plaint on the ground, that the suit land, after the death of their father was transferred in their names in the presence of witnesses, the gift deed is registered one and no fraud has been committed.
4. The learned trial Court framed necessary issues out of the controversial pleadings of the parties, recorded the evidence and finally decreed the suit, against which an appeal was filed by the respondents, which was allowed and the suit filed by the appellants was dismissed. Hence this Civil revision.
5. Learned counsel for the appellants has mainly questioned the propriety and validity of the judgment and decree passed by the learned appellate court on the ground that the respondents in order to prove the alleged gift deed, allegedly executed by the predecessor of the appellants produced only one marginal/attesting witness and by this way has failed to prove the gift deed (Ex.D-4) as required by Article 79 of Qanun-e-Shahadat Order, 1984. Learned counsel in support of his arguments has referred the findings recorded by the learned appellate court in Para-11 of the judgment impugned herein. Reliance is placed Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187), Farid Bakhsh v. Jind Wadda and others (2015 SCMR 1044) and Muhammad Abaidullah v. Ijaz Ahmed (2015 SCMR 394).
6. When it was confronted to the learned counsel appearing on behalf of the purchaser of 24-Kanal out of the total land (respondent No.13), the learned counsel submitted, that although the second attesting witness could not be produced by the respondents but the respondents produced the scribe and Sub-Registrar, therefore, the scribe is in fact the substitute of the attesting witness. Reliance is placed upon (2013 SCMR 1351).
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