In the Supreme Court of Pakistan 
(Appellate Jurisdiction) 
 
Present: 
Mr. Justice Anwar Zaheer Jamali, HCJ. 
Mr. Justice Amir Hani Muslim 
Mr. Justice Iqbal Hameedur Rahman 
 
Civil Appeal No. 194-P of 2010 
(on appeal from the judgment of Peshawar High Court, 
Peshawar, dated 24.11.2008 passed in C.R No.1575/2004) 
 
Mst. Saadia 
…Appellant 
VERSUS  
Mst. Gul Bibi 
…Respondent 
 
For the appellant:  
Mr. Abdul Sattar Khan, ASC. 
Mr. M. Ajmal Khan, AOR. 
 
For the respondent: 
Mr. Muhammad Shoaib Khan, ASC. 
Mr. Muhammad Zahoor Qureshi, AOR. 
 
Date of hearing: 
 
15.12.2015 
 
JUDGMENT 
 
 
Anwar Zaheer Jamali, C.J. – In respect of a house as 
detailed in the heading of the plaint in Suit No.32/1, bearing No.923, 
situated at Mohallah Shah Faisal Kochi Bazar, Chowk Nasir Khan, 
Peshawar City (hereinafter referred to as “suit house”), on 21.1.2002, 
respondent through her brother and special attorney had instituted a 
suit for declaration and permanent injunction against the appellant 
with the following prayer:- 
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C.A No.194-P/2010. 
2 
2/8/1995
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)ب ( � �� �اود ���ا � رو� دا� ى�د���
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2. 
The claim of respondent in respect of the suit house was 
based on two gift deeds dated 21.7.1986 and 02.8.1995, Ex.PW-1/1 and 
PW-1/2 respectively. As per the earlier gift of 1986, purportedly Mst. 
Fehmida Begum wife of Abdul Majeed Khan, who owned the suit 
property through registered deed dated 17.1.1977, had gifted the suit 
house to her brother Mirza Rab Nawaz, who was husband of the 
respondent, while by second gift deed dated 02.8.1995, said Mirza Rab 
Nawaz had purportedly gifted the suit house in favour of his wife, the 
respondent. 
3. 
In her written statement, the appellant categorically 
denied such claim of respondent and disputed the genuineness of both 
the purported gift deeds produced and relied upon by the respondent 
to establish her title over the suit house. She also disclosed other 
relevant facts about the legal heirs/brothers of Mst. Fehmida Begum, 
and her own relationship with the respondent, being her only paternal 
niece (daughter of her deceased husband’s brother). The appellant 
further disputed the maintainability of the suit on various legal grounds, 
as shown in the plaint. 
4. 
Upon divergent pleadings of the parties, as noted above, 
the trial Court of learned Civil Judge, Peshawar, framed six issues, out of 
which issue No.5 was the crucial issue for determination, which related 
C.A No.194-P/2010. 
3 
to the genuineness or otherwise of the two purported gift deeds Ex-
PW1/1 and PW1/2, relied by the respondent to claim her exclusive title 
over the suit house.  
5. 
At the stage of evidence, the respondent had examined 
five witnesses including herself while the appellant had examined only 
her mother in law and attorney. Besides, another witness was 
examined by the Court as CW-1/1, who was the handwriting expert, to 
whom Ex-PW1/1 and some other documents purportedly bearing 
signatures/thumb impression of Mst. Fehmida Begum were sent for 
comparison of her signature/thumb mark over Ex-PW1/1. 
6. 
The Civil Judge, Peshawar at the conclusion of proceedings 
in the suit, vide judgment dated 30.7.2004 decreed the suit in favour of 
respondent. This judgment was challenged by the appellant through an 
appeal under section 96, CPC filed before the Court of 2nd Additional 
District Judge, Peshawar on 29.9.2004, which was dismissed by the first 
appellate Court vide its judgment dated 18.11.2004. 
7. 
These concurrent findings of the two Courts below were 
then challenged by the appellant in Revision Petition No.1575/2004, 
filed before the Peshawar High Court, Peshawar on 15.12.2004, which 
was finally heard and dismissed vide impugned judgment dated 
24.11.2008. Against these concurrent findings of the three Courts 
below, when Civil  Petition for leave to appeal was filed by the 
appellant, leave was granted in terms of the order dated 06.4.2010, 
which reads as under:- 
C.A No.194-P/2010. 
4 
 
“A suit for declaration and perpetual injunction was filed by 
Mst. Gul Bibi (respondent) against Mst. Saadia (the petitioner). 
Respondent/plaintiff on the basis of un-registered Hiba claimed to be 
owner in possession of the suit property. Also pleaded that 
petitioner (real niece of the real owner of the house) had no right or 
interest in view of Hiba. Contesting written statement was filed by 
the petitioner. Issues were framed. Evidence was recorded by the 
learned trial Judge. The suit was decreed and appeal of the 
petitioner-defendant was dismissed. Her Civil Revision also failed 
before the High Court. Hence the present petition for leave to 
appeal. 
2. 
Learned ASC for the petitioner raised the following 
questions:- 
(i) 
As to whether the two Hiba namas could be legally 
relied upon without due registration in accordance 
with Section 17 of the Registration Act. And as to 
whether un-registered Hiba-namas were admissible 
under Section 49 of the Registration Act ibid; 
(ii) 
Whether the learned Courts below should have legally 
examined the above questions even if petitioner had 
failed to properly raise the same in her written 
statement or in the memo of appeal; and 
(iii) 
As to whether the respondent/plaintiff succeeded in 
proving execution of Hiba namas and making of Hiba 
thereof in terms of law; 
3. 
The above questions require consideration, leave is granted.” 
8. 
We have heard the arguments of learned ASC for the 
appellant. He has briefly stated relevant facts of the case forming 
background of this litigation, particularly with reference to the legal 
heirs of Mst. Fehmida Begum, wife of Abdul Majeed, the original owner 
of suit house vide registered deed dated 17.1.1977, who died issueless, 
having five brothers, Mirza Mushtaq, Mirza Nisar, Mirza Abdul Latif, 
Mirza Nazir Ahmed and Rab Nawaz. Learned ASC submitted that out of 
C.A No.194-P/2010. 
5 
them, three had died issueless, while it was only Mirza Nisar, the fourth 
brother, who had one daughter Mst. Saadia, the present appellant, who 
was minor at the time of death of Mst. Fehmida Begum. But in order to 
deprive her of her legitimate claim in the suit house, being the only 
descendant from the brothers of Mst. Fehmida Begum, two fraudulent, 
fabricated and forged gift deeds were prepared/managed. He argued 
with vehemence that surprisingly both these deeds were attested by 
four witnesses each, but except one, no other marginal witness of the 
gift deeds Ex-PW1/1 was examined nor it had been registered to give 
some credibility or authenticity as to the time of execution of such gift 
deeds, which could otherwise be easily fabricated and prepared at any 
time after the demise of original owner Mst. Fehmida. As regards the 
possession of suit house, he argued that possession of the suit house all 
along remained jointly with the family of Mst. Fehmida Begum till her 
death and thereafter with her brothers, including the father of the 
appellant, when she was a minor, therefore, question of delivery of 
possession also remained unproved. He further argued that judgments 
of all the three Courts below suffer from misreading and non-reading of 
evidence, so much so, that even the original Hibanamas Ex-PW1/1 and 
PW1/2 were not proceeded before the Court to prove their 
authenticity, whereas the witnesses were confronted with their 
photostat copies, which were not admissible in evidence, irrespective of 
the fact whether any objection to this effect was raised or not. 
C.A No.194-P/2010. 
6 
9. 
Conversely, the learned ASC for the respondent strongly 
supported the concurrent findings of the three Courts below on the 
plea that there was no instance of any misreading or non-reading of 
evidence and the two documents i.e. Exhibit PW1/1 and PW2/2, being 
not objected to, were also proved in accordance with law. He further 
argued that there was ample evidence available on record to show that 
Mirza Nisar, father of the appellant, maintained strained relations with 
Mst. Fehmida, the original owner of suit house, therefore, she had 
gifted the suit house exclusively in the name of her other brother, Rab 
Nawaz vide Gift Deed dated 21.7.1986. However, when the learned ASC 
was confronted with the contents of the two Gift Deeds i.e. Exhibit 
PW1/1 and PW2/2, he did not dispute that both these documents were 
unregistered and the respondent has no plausible explanation for 
seeking their attestation from four witnesses for each, out of whom 
only one relating to Ex-PW1/1 Hakeem Alauddin was examined, but 
even he did not confirm the signature or thumb impression of Mst. 
Fehmida over the alleged Gift Deed. He further conceded to the 
position that no document regarding the death of other attesting 
witnesses of these documents were placed on record to support the 
oral assertion of respondent that they all had died before the stage of 
evidence in the suit.  
10. 
We have carefully considered the arguments advanced by 
the learned ASCs for the parties and perused the material placed on 
C.A No.194-P/2010. 
7 
record including the original R&Ps of Suit No.3271 of 2002. According to 
the admitted facts of the case Mst. Fehmida was the exclusive owner of 
the suit house through registered Sale Deed dated 17.1.1977. She had 
five brothers, Mirza Mushtaq, Mirza Nisar, Abdul Latif, Nazeer Ahmed 
and Rab Nawaz, and she died issueless. Although, no exact date of her 
death has come on record, but one thing is clear that before the 
institution of declaratory suit by the respondent in the year 2002, the 
two purported Gift Deeds in her favour had not seen the light of the 
day in any manner/government record. In addition to it, as per 
admission of the respondent in her statement before Court, except 
Mirza Nisar all other brothers of late Mst. Fehmida used to live in the 
suit house till her death somewhere in the year 1989-90. Moreover, 
PW/2 Muhammad Younus, who is stated to be the marginal witness of 
Exhibit PW1/2, had also clearly affirmed the fact that the purported gift 
in favour of the respondent allegedly made by her husband, Rab Nawaz, 
was not signed by him in presence of any person. Further scrutiny of 
evidence adduced by Respondent reveals that admittedly appellant was 
the only surviving legal heir of Mst. Fehmida from her five brothers, she 
was minor at the time of her death and when she became major and 
agitated her claim over the suit house, respondent came out with the 
story of two Gift Deeds to legitimize her exclusive claim over the suit 
house. A man may lie but circumstances do not. In our opinion, the 
pleadings of the parties and the evidence brought on record from both 
the sides reveal that judgments of all the three Courts below suffer 
C.A No.194-P/2010. 
8 
from patent misreading and non-reading of evidence inasmuch as the 
Courts failed to appreciate the true effect of non-production of original 
gift deeds alongwith the plaint as per the requirement of Order VII, Rule 
14, CPC, even at evidence stage, and non-examination of attesting 
witnesses of the two Gift Deeds. More so, when the evidence of PW/1, 
PW/2 and PW/3, was also of no help to the case of Respondent to 
prove the authenticity or genuineness of the documents Exhibit PW1/1 
and PW2/2, who respectively deposed as under:-  
PW-1 Hakeem Allauddin: 
“Mst. Fehmeeda Khatoon was ill and was lying on bed. After three-four days 
of my visit Rabnawaz brought a written document duly thumb impressed 
and signed by Mst. Fehmeeda Khatoon and thereafter I alongwith the other 
marginal witnesses signed the same. Rabnawaz had got the signed 
document individually at different time from the marginal witnesses.”  
PW-2 Muhammad Younas: 
“Rabnawaz has not signed the said document before me but the signature 
marked-A is his signature as I am well acquainted with his signature.”  
PW-3 Muhammad Sherin:  
“It is correct that Rabnawaz has not signed the deed in my presence. 
Volunteered that he had already signed the same.” 
11. 
Beside, the evidence of these three witnesses the evidence 
of other two witnesses i.e. PW-4 Gul Bibi/respondent and PW-5 Shah 
Nadir further reveal that they were interested witnesses installed for 
the purpose of justifying the execution and genuineness of the two 
documents i.e. Ex-PW1/1 and PW1/2. However, they also failed as their 
evidence was not confidence inspiring enough to prove the execution of 
these two documents. Similarly the evidence of Hand Writing Expert 
was of no avail as all the documents sent to him; firstly, came from the 
C.A No.194-P/2010. 
9 
possession of the respondent; secondly, the comparison of Photostat 
copies with the originals was not warranted by law; and lastly such 
exercise was not a conclusive proof about the genuineness of Ex-
PW1/1. We, therefore, find much force in the arguments of the learned 
ASC for the appellant that concurrent findings of the three Courts 
below suffered from misreading and non-reading of evidence, which 
resulted in miscarriage of justice to the appellant, thus open to 
interference.  
12. 
At the cost of repetition, we may observe that the claim of 
respondent over the suit house is based on and subject to the validity of 
both documents Exhibit PW-1/1 dated 21.7.1986 and PW-1/2 dated 
02.8.1995, thus, the execution of these two documents was to be 
proved independently. In other words even if the execution of first 
document Exhibit PW-1/1 was presumed as valid and genuine, still the 
validity and genuineness of the other document Ex.PW-1/2 was to be 
proved independently, but the respondent did not even bother to 
produce this original document in Court. 
13. 
Had it been a case of genuine gift in favour of respondent 
then there was no justification for the respondent to withhold 
production of these documents for such a long period before filing the 
suit against the appellant when all the attesting witnesses as per her 
claim except PW/1, have expired. In this regard, mere oral assertion of 
the Respondent about the death of attesting witnesses of the two 
C.A No.194-P/2010. 
10 
documents had not absolved her of the legal burden to prove their 
death with some documentary evidence or atleast by examining some 
other independent witnesses in this regard. It also smacks of some foul 
play that instead of following usual practice of having two attesting 
witnesses of documents Ex-PW1/1 and PW1/2, these documents 
contained attestation by four witnesses at a time and for this reason 
too possibility of manipulation/substitution/subsequent addition of 
other two witnesses cannot be ruled out. 
14. 
Indeed, if a document in the form of memorandum of gift 
has been executed between the parties (donor and donee) as an 
acknowledgment of past transaction of oral gift, its non-registration will 
not have much bearing as regards its authenticity or validity, but the 
other important thing is the proof of fulfillment of three conditions of a 
valid gift “offer”, “acceptance” and “delivery of possession”. Reverting 
to the facts of the present case, we find that neither PW-1 Hakeem 
Alauddin, who was the only witness of first gift document Ex-PW1/1, 
had said anything about the fulfillment of these three conditions of gift 
between the parties in his presence, nor the other two witnesses, PW-2 
Muhammad Younas and PW-3 Muhammad Sherin of second gift 
document Ex-PW1/2 have deposed, whether the performance of these 
ingredients of gift, oral or otherwise, had taken place in their presence. 
Even the evidence of PW-4 Mst. Gul Bibi in this context is hearsay as 
regards the first document of gift and shaky to the extent that in her 
C.A No.194-P/2010. 
11 
deposition, she has admitted that atleast three other brothers of Mst. 
Fehmida Begum, Mirza Mushtaq, Mirza Abdul Latif and Mirza Nazir 
Ahmed, continued to live in the said house till their death. To sum up, 
virtually not a single witness from the side of respondent validly proved 
the performance of these three prerequisites for a valid transaction of 
gift in respect of the suit house. 
15. 
The upshot of the above discussion is that this appeal is 
allowed in terms of the short order already passed in this case.  
 
 
 
 
 
 
Peshawar, 
the 18th December, 2015. 
Approved for reporting. 
��ا���
 
Chief Justice 
 
 
Judge 
 
 
Judge 
 
