 IN THE SUPREME COURT OF PAKISTAN 
         (APPELLATE JURISDICTION) 
 
PRESENT: 
 
 
MR. JUSTICE EJAZ AFZAL KHAN. 
 
 
MR. JUSTICE UMAR ATA BANDIAL. 
 
 
 
 
  
C. A. No. 1797 of 2005.  
(On appeal from the judgment dated 26.09.2005 passed by the Lahore 
High Court, Lahore in C.R. No. 641 of 1991). 
 
Farid Bakhsh. 
 
 
 
 
 
     …Appellant. 
 
 
 
 
Versus 
Jind Wadda and others.  
 
 
 
     …Respondents 
 
 
 
 
 
For the appellant:  
Ch. Mushtaq Ahmed Khan, Sr. ASC 
 
 
 
 
Mr. M.S. Khattak, AOR 
 
For the respondents: 
Mian Asif Mumtaz, ASC 
(1-a,2,3) 
 
Date of hearing:  
30.03.2015. 
 
 
 
 
 
J U D G M E N T    
 
 
EJAZ AFZAL KHAN, J.- This appeal has arisen out of the 
judgment dated 26.09.2005 of the Lahore High Court, Multan Bench 
whereby the learned Judge in its chambers allowed the revision 
petition filed by the appellants, set aside the judgment and decree 
dated 03.09.1991 of the learned Additional District Judge, Rajan Pur 
and restored the judgment and decree dated 12.02.1990 of the 
learned Civil Judge.  
2. 
 
Facts forming the background of this case have been 
narrated in para-1 of the impugned judgment which read as under :-  
“On 22.4.1988 the respondent filed a suit against the 
petitioner. In the plaint it was stated that Muhammad alias 
Bhoori agreed to sell 99 kanals of land to the respondent for 
a consideration of Rs.90000/-. He received the entire amount 
of consideration and executed an agreement dated 
28.11.1986. The executant died before the said date. Later 
records were checked and it was found that the deceased 
owned only 48 kanals 6 marlas and also the price comes to 
C. A. No. 1797 of 2005. 
2 
 
Rs.44500/-. The petitioners are the heirs of the deceased who 
has died issueless. He had earlier filed a suit for declaration 
which was withdrawn with permission to file afresh on 
24.9.1988. The land stands mutated in favour of the 
petitioners. With these averments he sought a decree for 
specific performance of the said agreement. The petitioners 
in their written statement denied the said facts.”  
 
3. 
 
The learned ASC appearing on behalf of the appellant 
contended that where the appellant proved the document by 
producing positive evidence, which also enjoyed the virtue of being 
preponderant, it was for the respondents to prove that the 
document was forged and fabricated. The learned ASC to support 
his contention placed reliance on the case of Dil Murad and others. 
Vs. Akbar Shah (1986 SCMR 306), Nazir Ahmed v. Muhammad Rafiq 
(1993 CLC 257) and Jagannath Khan and others v. Bajrang Das 
Agarwala and others (AIR 1921 Calcutta 208). Failure to examine the 
other attesting witnesses, the learned ASC submitted, cannot furnish 
a justification for non-suiting the appellant when the scribe of the 
document also supported the testimony of one of the attesting 
witnesses. Such failure, the learned ASC maintained, being 
procedural in nature cannot be construed as substantive so as to 
make it a basis for non-suiting the appellant. The learned ASC to 
support his contention placed reliance on the cases of Imtiaz 
Ahmed. Vs. Ghulam Ali and others (PLD 1963 SC 382), Jameel 
Ahmed. Vs. Late Saifuddin through Legal Representatives (1997 SCMR 
260). Though the appellant, the learned ASC went on to argue, 
admitted that the executant suffered from a disease which resulted 
in his death but such admission appears to have been made without 
understanding the implications of the death-bed-transaction, 
therefore, no finding could based thereon. The learned ASC next 
C. A. No. 1797 of 2005. 
3 
 
contended that where two Courts below were at variance, the High 
Court in exercise of its revisional jurisdiction could not have interfered 
with the finding of the First Court of Appeal which was also the final 
court of fact. The learned ASC by placing reliance on the cases of 
S.A.K. Rehmani. Vs. The State (2005 SCMR 364), Muhammad Akram 
and another. Vs. Mst. Farida Bibi and others (2007 SCMR 1719) and 
Qadir Baksh (Deceased) through L.Rs. Vs. Allah Dewaya and another 
(2011 SCMR 1162), contended that no fault could be found with a 
document at a latter stage when it was admitted in evidence 
without any objection. The learned ASC lastly argued that where 
revision petition of the respondents was dismissed for non-
prosecution, its restoration could not be made without hearing the 
appellant that too when application moved in this behalf besides 
being time barred did not disclose sufficient cause.  
4. 
 
The 
learned 
ASC 
appearing 
on 
behalf 
of 
the 
respondents contended that where appellant being beneficiary of 
the document failed to prove it in accordance with the requirements 
of Article 79 of Qanoon-e-Shahadat Order [hereinafter referred to as 
“the Order”], the High Court was well within its turf to doubt its 
genuineness and discard it as such. The learned ASC next 
contended that where according to the appellant the executant 
received the amount and handed over possession of the property, 
what restrained him to get the deed registered. The whole story of 
the execution of the agreement to sell, the learned ASC added, 
appears to be a yarn spun to grab the property left by the 
deceased. While responding to the argument as to the restoration of 
the revision petition of the respondents dismissed for non-prosecution, 
the learned ASC contended that a revision petition admitted for 
C. A. No. 1797 of 2005. 
4 
 
regular hearing could be dismissed for non prosecution and that in 
case it was dismissed it could well be restored within a period of 
three years as was done in this case. The learned ASC by concluding 
his arguments contended that where the appellant himself admitted 
that the executant so called was suffering from a disease resulting in 
his death, he cannot turn around now to challenge the effect of 
such admission.  
5. 
 
We have gone through the entire record carefully and 
considered the submissions of the learned ASCs for the parties.  
6. 
 
The record reveals that the executant so called being a 
diabetic was living with the appellant. According to the appellant 
the executant so-called agreed to sell his landed property and that 
on receipt of sale consideration he executed the document which is 
Ex.P-1 on the record. But what happened to the executant so called 
during his stay with the appellant which called for the sale of his 
property? Alright, every human being with a free will could act in a 
manner he liked and even unpredictably but why didn’t appellant 
insist on registration of the sale when he paid the entire sum and 
there was no impediment in the way, is yet another question 
begging aloud for an answer. But when no answer much less 
convincing comes to the fore, it can well be gathered that things 
have not happened the way they have been portrayed in the plaint 
and the evidence examined by the appellant.  
7. 
 
The deed witnessing the agreement appears to have 
been signed by two attesting witnesses but appellant examined only 
one. He to cover up the lapse, in the first instance, sought to construe 
the requirements of Article 79 as being procedural rather than 
substantive, and then sought to equate the testimony of the Scribe 
C. A. No. 1797 of 2005. 
5 
 
with that of an attesting witness. But we cannot appreciate any of 
these arguments unless we know the nature of the document and 
requirements of law for proving it.  
8. 
 
There is no denying the fact that a deed witnessing an 
agreement to sell being a document involving financial obligation 
has to be proved in accordance with the requirements of Article 79 
of the Qanoon-e-Shahadat Order. What are its requirements for 
proving a document of this type can well be known by reading it 
which runs as under:- 
“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 giving 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 provision 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.” 
 
 
 
This Article in clear and unambiguous words provides 
that a document required to be attested shall not be used as 
evidence unless two attesting witnesses at least have been called for 
the purpose of proving its execution. The words “shall not be used as 
evidence” unmistakably show that such document shall be proved in 
such and no other manner. The words “two attesting witnesses at 
least” further show that calling two attesting witnesses for the 
purpose of proving its execution is a bare minimum. Nothing short of 
two attesting witnesses if alive and capable of giving evidence can 
even be imagined for proving its execution. Construing the 
requirement of the Article as being procedural rather than 
substantive and equating the testimony of a Scribe with that of an 
C. A. No. 1797 of 2005. 
6 
 
attesting witness would not only defeat the letter and spirit of the 
Article but reduce the whole exercise of re-enacting it to a farce. 
We, thus, have no doubt in our mind that this Article being 
mandatory has to be construed and complied with as such. The 
judgments rendered in the cases of Imtiaz Ahmed v. Ghulam Ali and 
others and Jameel Ahmed v. Late Safiuddin through Legal 
Representatives (supra) have therefore no relevance to the case in 
hand. Reference to the judgment rendered in the case of Nazir 
Ahmed v. Muhammad Rafiq (1993 CLC 257) (supra) cannot help the 
appellant when it being against the terms and meanings of the 
Article is per incuriam. The case of Jagannath Khan and others v. 
Bajrang Das Agarwala and others (supra) too will not help the 
appellant when production of two attesting witnesses was not a 
requirement of the law then in force. The argument addressed on the 
strength of the judgment rendered in the case of Dil Murad and 
others v. Akbar Shah (supra) has not moved us a bit when the 
appellant failing to call the other attesting witness failed to prove the 
deed in accordance with the requirements of law. Such failure, in the 
absence of any plausible explanation, would also give rise to an 
adverse presumption against the appellant under Article 129(g) of 
the Order. In the case of Hafiz Tassaduq Hussain v. Muhammad Din 
through Legal Heirs (PLD 2011 SC 241), this Court after defining the 
meanings of the word “attesting” in the light of Black’s Law 
Dictionary and other classical books and case law held that a 
document shall not be considered, taken as proved or used in 
evidence, if not proved in accordance with the requirements of 
Article 79 of the Order.  
C. A. No. 1797 of 2005. 
7 
 
9. 
 
Another reason for not equating the testimony of a 
Scribe with that of an attesting witness is that both of them sign the 
document in a different capacity and with a different state of mind. 
They, as such, do not meet the requirements of Article 79 of the 
Qanoon-e-Shahadat Order. Scribe, however, could be examined by 
the party for corroboration of the evidence of the attesting witnesses 
but not as a substitute therefor. This aspect was also highlighted in 
the case of Hafiz Tassaduq Hussain v. Muhammad Din through Legal 
Heirs (supra) in the paragraph which reads as under:- 
“To the same effect are the judgments reported as 
Qasim Ali v. Khadim Hussain through legal 
representatives and others (PLD 2005 Lahore 654) 
and Shamu Patter v. Abdul Kadir Rowthan and 
others (1912 (16) IC 250). Therefore, in my 
considered view a scribe of a document can only 
be a competent witness in terms of Articles 17 and 
79 of the Qanun-e-Shahadat Order, 1984 if he has 
fixed his signature as an attesting witness of the 
document and not otherwise; his signing the 
document in the capacity of a writer does not fulfil 
and meet the mandatory requirement of attestation 
by him separately, however, he may be examined 
by the concerned party for the corroboration of the 
evidence of the marginal witnesses, or in the 
eventuality those are conceived by Article 79 itself 
not as a substitute.”\ 
 
 
10. 
 
Transaction in this case, could not prima facie be given 
a colour of death-bed-transaction, if viewed in the light of the dicta 
rendered in the cases of Shamshad Ali Shah and others. Vs. Syed 
Hassan Shah and others (PLD 1964 SC 143), Mst. Chanan Bibi and 4 
others. Vs. Muhammad Shafi and 3 others (PLD 1977 SC 28), Noor 
Muhammad Khan and 3 others. Vs. Habibullah Khan and 27 others 
(PLD 1994 SC 650), Rehmat Ali deceased through L.Rs. Vs. Mst. Karam 
Bibi and others (2006 SCMR 940), as nothing has been brought on the 
record by the respondents to show that the executant so called at 
C. A. No. 1797 of 2005. 
8 
 
the time of executing the agreement to sell suffered from a disease 
which became the immediate cause of his death; that the disease 
he suffered from was of a nature which could induce imminent 
apprehension of death and that the disease he suffered from 
incapacitated him from pursuing his ordinary activities. But where the 
appellant himself, despite having been given to understand what 
does the expression death-bed-transaction stand for, admitted that 
the executant so called suffered, at the relevant time, from a disease 
having all the attributes listed above, he cannot make a somersault 
at this stage.  
11. 
 
The argument that no fault can be found with a 
document at the later stage when it was admitted in evidence 
without any objection is ornamental rather than legal as the counsel 
cross-examining the witness producing and exhibiting the document, 
can not foresee or anticipate that the other attesting witness is not 
going to be called. Therefore, the judgments rendered in the cases 
of S.A.K. Rehmani. Vs. The State (2005 SCMR 364), Muhammad Akram 
and another. Vs. Mst. Farida Bibi and others and Qadir Baksh 
(Deceased) through L.Rs. Vs. Allah Dewaya and another (supra) have 
no relevance to the case in hand.  
12. 
 
The argument about restoration of revision petition in the 
absence of the appellant cannot be overplayed when a revision 
petition admitted for regular hearing could not be dismissed for non 
prosecution and in case it was, it could be restored when an 
application in this behalf was moved well within time. The argument 
that where two Courts below were at variance, the High Court in 
exercise of its revisional jurisdiction could not have interfered with the 
finding of the First Court of Appeal, which is also the Final Court of 
C. A. No. 1797 of 2005. 
9 
 
Fact, is also without substance when the latter handed down the 
finding without considering material parts of evidence on the record 
and the relevant law in this behalf. We, therefore, hold that the 
impugned judgment being based on correct appreciation of 
evidence and the relevant law, is unexceptionable on all accounts.  
13. 
 
For the reasons discussed above, this appeal is dismissed, 
with no order as to cost. 
    
