Mst. SAKINA BIBI Versus MUHAMMAD ANWAR alias MUJAHID

MIAN SAQIB NISAR, J.--- Umar Din was the owner of the certain agricultural property and also a house, both situated in District Kasur, he died in the year 1989 and was survived by four sons Muhammad Sahfi, Muhammad Rafi, Abdul Sattar and Muhammad Iqbal, and four daughters namely Mst. Sabran, Mst. Sakina, Mst. Hajran and Mst. Razia. The mutation of his inheritance No.6789 dated 2-10-1989, was attested in favour of the above named heirs, when his two grandsons, respondents Nos. l and 2, who were the sons of Muhammad Rafi, filed an appeal before the Collector, claiming that the deceased had made a registered will dated 30-8-1984, in their favour, to the extent of 1/3rd of his agricultural land and also of the same share in the house; this appeal was dismissed by the Collector on 26-2-1990; their revision before the Addl. Commissioner, also met the same fate on 22-9-1990, whereafter, they withdrew their second revision from the Board of Revenue, on the ground that they had already filed a suit for the declaration, claiming their right based upon the will; all the legal heirs of Umar Din, were made party; Muhammad Shall, and Muhammad Rail conceded the suit of the plaintiff; Abdul Sattar was proceeded ex parte, whereas Muhammad Iqbal, Mst. Sabran, Mst. Sakina, Mst. Hajran and Mst. Razia contested the matter and took up the plea that the will is a fictitious document, upon which, issues were framed; parties were put to trial and the learned Civil Judge vide judgment and decree dated 29-11-1993, decreed the suit; against this judgment and decree only the present petitioners filed an appeal, which was allowed and the case was remanded by the learned Addl. District Judge on 28-3-1996; the C.R. No.2495/1996, brought by respondents Nos. 1 and 2, before this Court, was accepted and the matter was sent back to the Court of appeal, for decision itself; whereafter the appellate Court has confirmed the judgment and decree of the trial Court.

2. Learned counsel for the petitioners, contends that the will though has been attested by three witnesses, but has not been proved at least by two, as is required by the provisions of section 79 of the Qanun -e-Shahadat Order, 1984; it is also submitted that no reason has been given, as to why, the other two marginal witnesses of the will namely Muhammad Tariq and Munshi Muhammad Din, have not been examined by the plaintiffs; only Sardar Khan, has appeared as P.W.4, but his statement has not been properly considered and read by both the Courts. In the presence of the marginal witnesses, the execution of the will could not be proved through the scribe P.W. I; the decisions of both the Courts is based upon misreading and non-reading of the evidence. Lastly, it is submitted that without prejudice to the above, even if assuming for the sake of arguments, that the will was executed by Umer Din, but this when done with an object to disinherit the legal heir, the will is bad and legally unenforceable.

3. Heard. First of all, I would like to determine the question, if the' will dated 30-8-1984, under the provisions of Article 79 of the Qanun-e-Shahadat Order, 1984, was required to be proved, at least by examining two attesting witnesses. In this behalf, it may be held that the will was executed on 30-8-1984, whereas, Qanun-e-Shahadat Order, 1984 came into force on 28-10-1984, and inter alia, Article 17 of the Order, prescribed for the attestation of certain documents by certain number of witnesses. Without going into the academic question; if after the enforcement of the said law, a will by Muslim reduced into writing requires the attestation, suffice it to say that as at the time of the execution of the document, there was no requirement of law that a will should be attested by two witnesses and accordingly to be proved by the same number. Therefore, the argument of the petitioner's counsel that as it has been ordained by the Holy Qur'an in the Verse 105 of Surah Maaeda that the will should be witnessed by two persons and according to Article 17(1) of the Order, 1984, the competence and the number of witnesses in any case is to be determined according to the injunctions of Islam as per the Holy Qur'an and Sunnah, therefore, at the time of the proof of the will which is much subsequent to the promulgation of the Order, the will had to be proved according to Articles 79 and 17, has no force because the said Articles have no retrospective effect.

4. The important question, as agreed upon by the learned counsel for the parties, involved in the case is, if the will dated 20-8-1984, has been proved by the plaintiffs to have been executed by Umer Din in their favour. In this behalf, issue No.1 has been framed though the respondents are the plaintiffs of the case and the beneficiaries of the will, thus the onus to prove the valid execution of the document should have been placed upon their shoulders, but the initial burden was wrongly placed upon the petitioner/defendant. Anyhow, as both the parties being conscious about the nature and scope of the issue, have led evidence and it is no body's case that any prejudice has been caused to him. But in any case, as the respondents/plaintiffs are the beneficiaries of the will, it is for them to have finally proved a .valid will in their favour; for this, they have examined P.W. Muhammad Sadiq, who claims to be the scribe of the document; he stated that he had authored the will on the asking of Umer Din and the document was read over to Umer Din and the marginal witnesses, who had affixed their thumb impressions and signatures respectively. However, this witness has not stated, as to how and since when Umar Din was known to him; if Umer Din was. a literate person and was explained about the nature and the contents of the document in the language he understood, because according to Muhammad Shall, P.W.2, they all were illiterate persons; he is not a marginal witness of the document, and has not expressly or specifically stated that the execution by the testator was made in his presence and it was attested by two witnesses also at that time; it is only by implication that his presence can he assumed as argued by the respondents' counsel. The two Courts below have not given too much importance to this witness, but without discussing or analyzing his statement and have simply held that his deposition has not been upset in the cross-examination.

5. The argument of the learned counsel for the respondent that the scribe of a document can also be an attesting witness and therefore, P.W. should be considered of such a category. Suffice it to say that in order to qualify a scribe as an attesting witness, he must fulfil the following criteria laid down in the case reported as Qasim Ali v. Khadim Hussain PLD 2005 Lah. 654:--

"The submission that D. W.2 Ch. Muhammad Afzal Bhatti, Advocate, who scribed the document, should be considered to be the second attesting witness, suffice it to say that there is no bar in law that the statement of a scribe can never be considered as being that of a person witnessing the execution. But, in my firm view, this is subject to two very basic conditions. Firstly, that the scribe should also have signed the document as an attesting witness and if that is not so, it must be proved on the record that at the time when the document was executed, he was present and not only witnessed the execution by the executants, but also the attestation by the required number of witnesses. Secondly, that the witnesses, whom the parties have chosen as the attesting witnesses, with the obvious intention, that in case of dispute about the execution, it is they, who shall testify in this behalf, but for inevitable and the circumstances, beyond the control of the parties, cannot be examined. Except fulfilling the second condition, it shall be impermissible for a party, to examine the scribe as a substitute for the attesting witness, who shall not be considered as an attesting witness in terms of Article 79, with the consequences to follow. Besides, the principles of withholding the best evidence could also be attracted against the defaulting party."

Though as mentioned earlier, the present case is not being judged upon the yardstick of Article 79 of the Qanun-e-Shahadat Order, and it was not compulsory for the plaintiffs to have examined the other attesting witness for the proof of the will, yet in the light of the precedent referred to above, it may be held that on the General Principles about the proof of a disputed document, a scribe cannot equate or partake a marginal witness and his statement only remains to be in the nature of a corroborative piece of evidence. P.W.2 is Muhammad Shaft; both the Courts below have taken him to be the attesting witness of the will, but this is a total misreading of the evidence on the record, because the attesting witnesses of the will are, Munshi Muhammad Din, Sardar Khan and Muhammad Tariq; P.W.2 is alleged to have appeared before the Sub-Registrar and that too on behalf of the plaintiffs and not for Umer Din and in no way can be said to be an attesting witness; he at that time was acting as the agent of the plaintiffs; he from the totality of the evidence on the record is the key and main person instrumental in the preparation and the alleged execution and the registration of the will and his daughter is married to one of the plaintiffs, whereas his son Waris is married to the plaintiffs' sister. He earlier in his cross-examination, stated that Sardar Khan P.W.4 (the only marginal witness produced by the plaintiff's) is the resident of Mouza Hardo Sajni Wala and met them for the purpose of the identification at the place of the scribe, but later he conceded that he had relations with Sardar prior thereto, and more significantly.

Obviously, this shows his close relations with Sardar Khan, the only witness produced by the plaintiff's, alleged to be the marginal witness of Exh.P.1 and has appeared as P.W.4; P.W.2 further in his cross-examination, has stated:

This clearly indicates that not only Umer Din was an illiterate person, but they all were, and it is this witness, who had influenced upon the free consent of the testator; this proves that on account of being under the influence of P.W.2/plaintiff's side, an illiterate person and due to non-explanation of the contents of the will, Umer Din was not conscious as to what was being executed by him. And it is a settled principle of law that mere appendage of the thumb marks or the signatures does not mean E the due execution of the document. The P. W.3 is one of the plaintiffs and no much importance can be given to his testimony. P.W.4 is Sardar Khan, who deposed that the will was read over to Umer Din, but this witness has also not stated, if Umer Din understood Urdu and that the will was also explained to him in his language; he, as held by the two courts below, is the Lumberdar, but he is not the Lumberdar of the same village, rather of some other Mouza and according to the statement of Muhammad Shari, had stayed with him a night before, whereas, in the cross-examination, the witness deposed:

This totally contradicts the statement of Muhammad Shafi and has not been taken into account' by the two Courts below; he also admit that he knew Muhammad Shafi; he allegedly claims to have known Umer Din as well, but how and since when, is not explained by him. He has not been able to state the name of any of Umer Din's children; besides an important admission has been made by him in the cross-examination

6. From the reproduced parts of his statement and the quality of his deposition in general, which has not been considered by the two Courts below, by applying their minds, it is clear that P.W.4 is closely known to Muhammad Shall and on his behest and asking, has allegedly attested the document; he is not the Lumberdar of that village and it is not established by the plaintiffs/respondents, as to why some noteable and respected person of the same area such as Lamberdar of their Mouza, was not present at the time of the execution or produced before the Sub-Registrar for the purpose of identification of Umer Din, particularly, when Umer Din, has not been identified, through an document, such as his identity card. etc., the plaintiffs who in fact were/are the beneficiaries of the sale, had never applied to the Court for the purposes of the comparison of thumb impression of timer Din on the disputed will with any other admitted impression; more significantly, the alleged will has been admittedly witnessed by Muhammad Tariq and Munshi Muhammad Din; they have not been examined by the plaintiffs and no justification for this omission, has been given by them. Obviously, this act of the plaintiffs tantamount to withholding of the best evidence and presumption under Article 129(g) of the Qanun-e-Shahadat Order, 1984, can be duly raised against them, that had these persons been examined, they would have deposed against the plaintiffs. The two Courts below have given undue importance to the fact that the respondents have failed to prove that the will is fictitious, etc., suffice it to say that such being negative proof, it was adequate, when the defendants through their statements, have deposed that the will was not executed by Umer Din, the onus primarily was and always remained upon the plaintiffs being the beneficiaries of the will to prove it up to the hilt, but in my view they have miserably failed. The Courts below have not considered any part of the evidence, which has been high.lighted in this judgment and therefore, the judgments of the Court below suffers from sheer misreading and non-reading of the evidence which has no sanctity on the principle of the concurrent finding of fact.

In the light of above, by accepting this petition, I reverse the finding of the Courts below on Issues Nos.1 and 8 with the result that the suit of the respondents stand dismissed.

S.A.K./5-195/L Revision accepted.