Full Judgment Text & Judicial Ruling

P L D 2026 Sindh 140 Before Arbab Ali Hakro, J Mst. FATIMA PARVEEN and another---Applicants Versus MUHAMMAD YOUNUS and 4 others---Respondents Civil Revision Application No. 3 of 2007, decided on 28th February, 2025. (a) Qanun-e-Shahadat (10 of 1984)--- ----Arts.17 & 79---Specific Relief Act (I of 1877), Ss.12 & 22---Evidence Act (I of 1872) S.68---Civil Procedure Code (V of 1908) S.115---Suit for specific performance of agreement to sell---Proof---Courts discretion to grant relief of specific performance discussed---Execution of agreement denied by vendor---Agreement executed prior to promulgation of Qanun-e-Shahadat, 1984---Question was as to whether the agreement could be proved by just producing one attesting witness as per S. 68 of the Evidence Act, 1872, or since the evidence having been recorded after promulgation of Qanun-e-Shahadat, 1984 the provisions of Ss. 17 & 79 would apply to the case requiring two attesting witnesses to prove execution of the agreement---Qanun-e-Shahadat, 1984 being procedural law would apply retrospectively to the case where the agreement under question was allegedly executed even prior to the existence of Qanun-e-Shahadat, 1984---Facts in brevity were that the respondent/plaintiff (vendee) filed a suit for specific performance of an agreement to sell dated 07.01.1982 claiming he purchased the land in question from petitioner No.2 (vendor) who later on through a sale deed dated 22.12.1997 sold the land to petitioner No.1 and contended that since the agreement was executed prior to promulgation of Qanun-e-Shahadat, 1984, S. 68 of Evidence Act, 1872 would come to his aid and protection, which required only one attesting witness to prove the execution of the agreement---Held: The provisions of Arts. 17 & 79 of the Qanun-e-Shahadat, 1984 were endowed with retrospective effect as same were procedural in nature, and as a jurisprudential principle, procedural laws possessed retrospective applicability unless explicitly stipulated otherwise---The retrospective application of Arts. 17 & 79 of Qanun-e-Shahadat, 1984 signified that they extend to cases that originated prior to their promulgation, contingent upon the evidence being recorded subsequent to their enforcement---Section 68 of the Evidence Act, 1872 required that if a document was legally required to be attested it could not be used as evidence until at least one attesting witness was called to prove its execution---This provision was in effect before the Qanun-e-Shahadat, 1984 was promulgated, however, once Qanun-e-Shahadat came into force, it repealed the Evidence Act, 1872 and its provisions took precedence---In the present case, the agreement to sell was executed on 07.01.1982 predating the promulgation of Qanun-e-Shahadat, 1984---The agreement was attested by two witnesses, however, only one witness was produced when the evidence was recorded in the year 2003---Given that the evidence was recorded subsequent to the enforcement of the Qanun-e-Shahadat, 1984 the provisions encapsulated in Arts. 17 & 79 of Qanun-e-Shahadat, 1984 were unequivocally applicable and the respondent/plaintiff (vendee) was required to produce two attesting witnesses to prove the execution of the agreement---Notwithstanding, under S. 22 of the Specific Relief Act, 1877, a court s exercise of judicial discretion in decreeing the suit for specific performance of a contract was inherently discretionary and not a matter of absolute right for any party---The grant of specific performance was not obligatory and could be denied by the court if the prevailing circumstances warranted such denial---In the present case the respondent/plaintiff s non-compliance with the attestation requirements mandated by Art. 79 of the Qanun-e-Shahadat, 1984, by failing to call both attesting witnesses, rendered the document inadmissible as evidence and undermined the credibility of the agreement s execution---Additionally, the respondent/plaintiff could not substantiate the payment of the sale consideration, as the testimony of one attesting witness, was vague and did not corroborate the payment---The respondent/plaintiff failed to produce receipts to prove the payment of instalments, further diminishing the strength of his claim---Given the discrepancies in the evidence and the respondent/plaintiff s inability to meet the legal requirements, granting specific performance would not have been equitable, as the court had to ensure that the relief granted did not result in injustice or unfairness to any party---Therefore, in light of the discretionary nature of specific performance and the circumstances of the present case, the Court should exercise its discretion judiciously and decline to grant specific performance---The court below acted with material irregularity---Present civil revision petition was allowed, in circumstances. Riazur Rahman and others v. Muhammad Urs 2005 MLD 1954 ref. Muhammad Riaz Hussain v. Zahoor ul Hassan 2021 SCMR 431 rel. (b) Qanun-e-Shahadat (10 of 1984)--- ----Arts.17 & 79---Agreement to sell---Proof---Execution of agreement denied---Producing two attesting witnesses is mandatory to prove execution---Qanun-e-Shahadat, 1984 being procedural law would apply retrospectively---Significance of Arts. 17 & 79 of Qanun-e-Shahadat, 1984/stated---Article 17 of the Qanun-e-Shahadat, 1984 addresses the competence of witnesses and the required number of witnesses for different types of matters---In matters relating to financial or future obligations that have been reduced to writing, Art. 17(2)(a) specifies that the document must be attested by two men, or one man and two women---For all other matters, Art. 17(2)(b) grants the court the discretion to accept or act on the testimony of one man or one woman, or any other evidence deemed appropriate given the circumstances of the case---The presence of multiple witnesses serves as a safeguard against potential fraud or false testimony---Article 79 of the Qanun-e-Shahadat, 1984 further stipulates that if a document is required by law to be attested, it cannot be used as evidence until at least two attesting witnesses are called to prove its execution---This provision is intended to verify the authenticity of attested documents by requiring the testimony of persons who can confirm that the document was duly executed in their presence---The failure to call both attesting witnesses renders the document inadmissible, as it undermines the credibility of the document s execution---The provisions encapsulated within Arts. 17 & 79 of the Qanun-e-Shahadat, 1984, are endowed with retrospective effect---These provisions are applicable to cases wherein the evidence was recorded subsequent to their enforcement, notwithstanding that the transaction transpired prior to their promulgation---Article 79 of Qanun-e-Shahadat, 1984 unequivocally stipulates that a document mandated by law to be attested, cannot be admissible as evidence unless two attesting witnesses are summoned to substantiate its execution, contingent upon their being alive, subject to the court s jurisdiction, and competent to provide testimony---The omission to summon the second attesting witness contravenes the explicit mandate of Art. 79 of the Qanun-e-Shahadat, 1984 and consequently impairs the credibility of the document s execution---In summation, the provisions enshrined in Arts. 17 & 79 of the Qanun-e-Shahadat, 1984, possess retrospective applicability---The non-compliance with the requirement of summoning both attesting witnesses culminates in the document being inadmissible in evidence. Riazur Rahman and others v. Muhammad Urs 2005 MLD 1954 ref. (c) Qanun-e-Shahadat (10 of 1984)--- ----Arts. 17 & 79---Registration Act (XVI of 1908), S.17---Agreement to sell---Proof---Execution of agreement denied---Producing two attesting witnesses is mandatory to prove execution---Exception to the said rule stated---Article 79 of the Qanun-e-Shahadat, 1984 outlines the procedure for proving the execution of a document required by law to be attested---According to this provision, if a document must be attested by law, it cannot be used as evidence until at least two attesting witnesses have been called to prove its execution---This provision aims to ensure the authenticity and validity of attested documents by requiring the testimony of witnesses who can confirm their execution---However, there is an exception to this rule---It is not necessary to call an attesting witness to prove the execution of any document (except for a will) that has been registered in accordance with the provisions of the Registration Act, 1908---This means that for registered documents, the registration itself serves as sufficient proof of execution, and the testimony of attesting witnesses is not required unless the execution of the document is specifically denied by the person who purportedly executed it---In cases where the execution of the document is disputed, attesting witnesses must be called to provide evidence to resolve the matter. (d) Interpretation of statutes--- ----Procedural law---Retrospective application---Procedural laws possess retrospective applicability unless explicitly stipulated otherwise---Procedural laws govern the mechanisms and methodologies through which substantive rights and obligations are effectuated---This retrospective effect comports with the principle that procedural laws are designed to augment the administration of justice by ensuring that judicial proceedings are conducted with fairness and efficacy. (e) Transfer of Property Act (IV of 1882)--- ----S. 53-A---Specific Relief Act (I of 1877) S.12---Agreement to sell---Doctrine of part performance---Applicability and essential requirements---Agreement must reflect delivery of possession---Continuous possession in part performance must be substantiated by vendee---Section 53-A of the Transfer of Property Act, 1882, provides protection to a transferee who has taken possession of a property based on a partially performed contract---This protection is available even if the contract itself is not fully registered or legally enforceable, as long as the transferee has acted in good faith and partially performed the terms of the agreement---This is commonly referred to as the "doctrine of part performance"---However, in the present case, the respondent/ plaintiff s inability to prove possession since the year 1982 and the lack of any mention of possession in the agreement to sell precluded the application of S. 53-A---Since the agreement did not explicitly provide for the delivery of possession, and the respondent/plaintiff (vendee) could not substantiate his claim of possession through evidence, no protection under S. 53-A could be extended---The respondent/plaintiff s (vendee) failure to prove possession from the date of execution of agreement to sell in 1982 and the absence of an explicit provision in the agreement regarding possession negated the applicability of the doctrine of part performance under S. 53-A of the Transfer of Property Act, 1882---Court below acted with material irregularity---Present civil revision petition was allowed, in circumstances. (f) Registration Act (XVI of 1908)--- ----Ss.28 & 30---Land documents must be registered in the Sub-Registrar s office where the property is located---Registration of documents irrespective of the property s location within Pakistan---Scope---Section 28 of the Registration Act, 1908 mandates that documents related to land must be presented for registration in the office of the Sub-Registrar within whose Sub-District the property is located---Section 30 of the Registration Act, 1908 grants Registrars the discretion to register documents that could be registered by any Sub-Registrar subordinate to them and to register documents without regard to the property s location within Pakistan. (g) Civil Procedure Code (V of 1908)--- ----S.115---Revisional jurisdiction of the High Court---Judgments at variance---Scope---When the findings of the two courts below are at variance, the High Court would be justified in appreciating the evidence to arrive at the conclusion as to which of the decisions is accord with the evidence on record---Where two courts below, while giving their findings on a question of law, have committed material irregularity or failed to read the evidence on point, which resulted in miscarriage of justice, the High Court would have the occasion to re-examine the question and to give its findings on that question in exercise of revisional jurisdiction. Karim Bakhsh through L.R.s. and others v. Jindwadda Shah and others 2005 SCMR 1518 and Abdul Rashid v. Muhammad Yasin and another 2010 SCMR 1871 rel. Aqeel Ahmed Siddiqui for Applicants. Babar Ali Kazmi for Respondents. Date of hearing: 31st January, 2025. JUDGMENT ARBAB ALI HAKRO, J.---Through this Civil Revision Application under Section 115 of the Civil Procedure Code 1908 ("C.P.C."), the applicants have challenged the Judgment and Decree dated 01.12.2006, passed by the Additional District Judge-II, Badin ("the appellate Court") in Civil Appeal1. The appellate Court's decision overturned the Judgment and Decree dated 31.5.2003, passed by the Senior Civil Judge, Golarchi at Badin ("the trial Court") in a Suit2, which had dismissed the suit of the Respondent/Plaintiff. As a result, the appellate Court decreed the suit in favour of the Respondent/Plaintiff. 2. The salient facts precipitating the aforementioned Civil Revision Application are that the Respondent/Plaintiff initiated legal proceedings for Specific Performance of Contract, Cancellation of Sale Deed No.930 dated 22.12.1997, and Permanent Injunction against the applicants. The respondent asserted that he had purchased suit land3, from Applicant No.2 for a sum of Rs.180,000/- under an agreement to sell dated 07.01.1982, in the presence of witnesses attested by the Mukhtiarkar and F.C.M. Shaheed Fazil Rahu. The respondent claimed to have paid the full and final sale consideration to Applicant No.2, and possession of the suit land was handed over to him. It is further averred that the agreement stipulated the suit land was a running grant and the respondent was responsible for paying the instalments to the Government. Upon full payment, applicant No.2 was obligated to execute the registered Sale Deed. The respondent invested a substantial amount in developing the suit land, which is now under his cultivation. According to the respondent, after the issuance of the T.O. Form and entry mutation in the record of rights on 10.12.1997, he approached Applicant No.2 for the execution of the registered Sale Deed. However, Applicant No.2 kept him on false assurances. Approximately one month before filing the suit, the husband of Applicant No.1 claimed that Applicant No.1 had purchased the suit land through a registered sale deed. Consequently, the respondent applied for a certified true copy of the sale deed on 04.10.1999, received it on 16.10.1999, and subsequently filed the suit. 3. The applicants have contested the suit and submitted their written statement, categorically denying the execution of the agreement to sell and asserting that it is a forged document. They have also denied the receipt of any sale consideration. Applicant No.2 claimed that he had conveyed the suit land to Applicant No.1 through a registered Sale Deed and that Applicant No.1 is presently in possession of the suit land. 4. After framing the issues and recording the pro and contra evidence of the parties, the trial Court dismissed the suit vide Judgment and Decree dated 31.5.2003. Dissatisfied with the judgment and decree of the trial Court, the respondent filed an appeal before the appellate Court. Upon hearing the parties, the appellate Court allowed the respondent's appeal, vide the impugned judgment and decree dated 01.12.2006 and decreed the suit of respondent. Consequently, this culminated in the present Civil Revision. 5. It is pertinent to mention that, initially, this Court, after hearing the applicants and observing that the respondent had failed to appear despite several opportunities, consequently allowed this Revision Application vide judgment dated 10.5.2018. Aggrieved by this decision, the respondent preferred Civil Appeal No. 928/2018 before the Supreme Court of Pakistan. The Supreme Court of Pakistan, after hearing the parties, remanded the matter to this Court vide Order dated 23.5.2022, with the following observations/directions: - "In the forgoing circumstances, we are of the considered view that the judgment of the High Court could not be sustained and the Appellant is entitled to a hearing on merits before the High Court. The judgment of the High Court, consequently, is set aside. This appeal is allowed. The revision petition would be deemed pending before the High Court as it is remanded for decision afresh. All the parties present here are directed to appear before the High Court on 02nd June, 2022 and it is expected that keeping in view that the matter is very old, it would be decided afresh within a period of four month." 6. At the outset, learned counsel representing the applicants submits that the appellate Court erred in law by holding that the execution of the agreement to sell was proved by the respondent. Such findings are neither based on the evidence produced by the parties nor the law correctly applied regarding the proof of a document laid down by the superior Courts. He further contended that the appellate Court acted illegally by holding that the document was proved according to law by examining one of the attesting witnesses, as it was executed prior to the enforcement of the Qanun-e-Shahadat Order, 1984 ("QSO, 1984"). The appellate Court failed to consider that the subject agreement to sell was attested by two witnesses, and evidence before the trial Court was recorded when the QSO, 1984 was in existence. Counsel further argued that, as established in the case of Mst. Rasheeda Begum and others4, the proof must align with the format of the document executed by the parties to the contract. When an agreement is attested by two witnesses, its execution must be proved in accordance with the provisions of Articles 17 and 79 of the QSO, 1984. He also highlighted material discrepancies in the evidence presented by the respondent's side, which were omitted by the appellate Court. Learned counsel further pointed out that the agreement to sell is silent regarding the delivery of possession of the suit land. The appellate Court ignored that the trial court held that the respondent failed to prove his possession of the suit land as part of the performance of the alleged agreement. He further contended that the respondent brought land revenue receipts on record, which only demonstrate that land revenue was paid by the respondent on behalf of Applicant No.2, and mere payment of land revenue does not prove possession of the suit land. In conclusion, he asserted that the appellate Court committed a legal error in decreeing the suit of the respondent, and therefore, the impugned judgment and decree are liable to be set aside. 7. Responding to the contention, the learned counsel representing the respondent defended the impugned judgment and decree of the appellate Court. He contended that the appellate Court recorded findings of fact grounded in a thorough evaluation of the evidence. He further contended that the agreement to sell was executed prior to the promulgation of the Qanun-e-Shahadat Order, 1984 ("QSO, 1984"), which has no retrospective effect. At that time, the Evidence Act was in existence, according to which only one attesting witness was required to prove the agreement to sell. He also contended that the alleged Sale Deed was executed in Hyderabad, despite the suit land being situated within District Badin, rendering the transaction illegal. He further argues that the possession of the suit land was handed over to the respondent in part performance of the sale agreement and the respondent has been in continuous cultivating possession of the same. In support of his arguments, he cited the case law reported as PLD 2006 SC 318, 1999 SCMR 1245, 2016 CLC 553, 2020 MLD 100 and 1991 CLC Note 120. 8. The arguments have been heard at length, and the available record has been meticulously evaluated with the assistance of the learned counsel for the parties, including the case law they rely upon. To determine whether justice has been dispensed, it is imperative to analyze the findings of both the Courts below. 9. Firstly, here the question to be addressed is whether provisions of Articles 17 and 79 of the QSO, 1984 have retrospective effect or whether provisions of Section 68 of the Evidence Act, 1872 (the "Act of 1872") are applicable in the circumstances of the present case. The circumstances of the present case are that an agreement to sell was entered into between the parties on 07.01.1982, before promulgation of the QSO, 1984; whereas perusal of the agreement to sell reveals that it was attested by two witnesses namely Rehmat Ali and Punhoon and respondent/plaintiff out of above two witnesses had only examined one witness namely Rehmat Ali, though the evidence of Respondent/plaintiff was recorded in the year, 2003, when the provisions of the QSO, 1984 was in existence, whereas the Act of 1872 was not in existence as it was repealed. To answer the above question, it would be imperative to reproduce Articles 17 and 79 of QSO, 1984, here under: "17. Competence and number of witnesses.--(1) The competence of a person to testify, and the number of witnesses required in any case shall determined in accordance with the injunctions of Islam as laid down in the Holy Qur'an and Sunnah. (2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law- (a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and (b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman, or such other evidence as the circumstances of the case may warrant. 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 given 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 provisions 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." 10. The above Article 17 of the QSO, 1984, provides the guidelines for determining the competence of a person to testify and the required number of witnesses in legal proceedings. According to this provision, the competence of a person to testify and the requisite number of witnesses must be determined based on the injunctions of Islam as laid down in the Holy Qur'an and Sunnah. This implies that the ability of a person to provide testimony in a court of law and the number of witnesses required must align with Islamic principles. In matters relating to financial or future obligations that have been reduced to writing, Article 17(2)(a) specifies that the document must be attested by two men, or one man and two women. The rationale behind this requirement is that one witness may remind the other if necessary, thereby ensuring the reliability of the testimony. This provision underscores the importance of having a sufficient number of witnesses to corroborate the validity of the document in financial matters. For all other matters, Article 17(2)(b) grants the Court the discretion to accept or act on the testimony of one man or one woman, or any other evidence deemed appropriate given the circumstances of the case. This flexibility allows the Court to consider various types of evidence and testimonies, taking into account the specific context and requirements of each case. The provision ensures that the Court has the authority to evaluate the credibility and sufficiency of the evidence presented before it. 11. Whereas Article 79 of the QSO, 1984, outlines the procedure for proving the execution of a document required by law to be attested. According to this provision, if a document must be attested by law, it cannot be used as evidence until at least two attesting witnesses have been called to prove its execution. This requirement applies only if the attesting witnesses are alive, subject to the Court's process, and capable of providing evidence. This provision aims to ensure the authenticity and validity…

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