PLJ 2021 SC 217
[Appellate Jurisdiction]
Present:
Qazi Faez Isa and Yahya Afridi, JJ.
Sheikh MUHAMMAD MUNEER--Petitioner
versus
Mst. FEEZAN--Respondent
C.P.
No. 962 of 2016, decided on 25.2.2021.
(Against
the order dated 11.01.2016 passed by the Lahore High Court,
Specific Relief Act, 1877 (I of
1877)--
----S. 12--Constitution of
Mr. Muhammad Munir Piracha,
ASC and Mr. Mehmood A. Sheikh, AOR for Petitioners.
N.R. for
Respondent.
Date of hearing: 25.2.2021.
Order
Qazi Faez Isa, J.--The learned Mr. Munir Piracha submits
that the petitioner had filed a suit on 8 March 1999 seeking specific
performance of an agreement dated 3 August 1998 through which he had agreed to
buy the respondent’s house for three hundred and fifty thousand rupees, of
which an amount of one hundred and fifty thousand rupees was paid, but since
the respondent refused to receive the balance sale consideration and to convey
the house to the petitioner the suit was filed. The agreement is shown to be
witnessed by three persons, namely, Muhammad Ali, the husband of the
respondent, Allah Ditta and Muhammad Nawaz.
2. The
learned counsel states that Muhammad Ali was not produced as a witness because
the petitioner apprehended that he would not admit witnessing the execution of
the agreement because he was the respondent’s husband. Another witness Allah
Ditta was not produced because he could not be found. However, Muhammad Nawaz
(PW-8) was produced and so too the scribe of the agreement, namely, Muhammad
Iqbal (PW7). The learned counsel submits that a scribe can be an attesting
witness and in support of his contention refers to Article 79 of the Qanun-e-
Shahadat, 1984[1]
(‘Qanun-e-Shahadat’) and Section 3 of the Transfer of Property Act, 1882[2]
(‘Act’). He says that reading these two provisions together permits a
scribe to be an attesting witness. Therefore, since two persons in their
testimony had said that the agreement was signed before them the requirement of
Article 79 of the Qanun-e-Shahdat had been met and the agreement stood proved.
Learned counsel submits that neither the learned Judges of the Subordinate
Courts nor the learned Judge of the High Court appreciated this point and
dismissed the petitioner’s suit by holding that two attesting witnesses of the
agreement had not been produced to confirm its execution.
3. To
appreciate the learned counsel’s point it would be appropriate to reproduce
hereunder the cited provisions:
Article 79 of the Qanun-e-Shahadat, 1984:
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.
Section 3 of the Transfer of
Property Act, 1882:
3. Interpretation clause.
“attested”, in
relation to an instrument, means and shall be deemed always to have meant
attested by two or more witnesses each of whom has seen the executant sign or
affix his mark to the instrument, or has seen some other person sign the
instrument in the presence and by the direction of the executant, or has
received from the executant a personal acknowledgment of his signature of mark
or of the signature of such other person, and each of whom has signed the
instrument in the presence of the executant; but it shall not be necessary that
more than one of such witnesses shall have been present at the same time, and
no particular form of attestation shall be necessary.
4.
The respondent-defendant denied the execution of the agreement and denied
agreeing to sell her house. Therefore, the said agreement was required to be
proved as mandated by Article 79 of the Qanun-e-Shahadat. If precedent is
required for this trite contention reference may be made to the decision in the
case of Nazir Ahmed v Muzaffar Hussain[3]
which held, that:
… in case of denial of
execution of document, the party relying on such document must prove its
execution in accordance with the modes of proof as laid down in
Qanun-e-Shahadat Order, 1984 and the party is required to observe rule of
production of best evidence.[4]
The aforesaid was also stated in the
case of Maqsood Ahmad v. Salman Ali.[5]
5. The learned counsel says that the scribe who wrote the
agreement was an attesting witness of its execution. A scribe may be an
attesting witness provided the agreement itself mentions/nominates him as such.
The agreement mentioned three attesting witnesses by name and the scribe
(Muhammad Iqbal) was not one of them. In the case of Tassaduq Hussain v
Muhammad Din[6]
this Court had held that a scribe is not an attesting witness in terms of
Articles 17 and 79 of the Qanun-e-Shahadat:
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 fulfill 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.[7]
To state that the
scribe (Muhammad Iqbal) was an attesting witness is contrary to the contents of
the said agreement.
6. Oral evidence in contradiction
of the contents of a document cannot be led as stated by Article 70 of the
Qanun-e-Shahadat, which is reproduced hereunder:
70. Proof of facts by oral evidence.
All facts, except the contents of documents, may be proved by oral evidence.
However, oral
evidence to the contents of a document may be lead in certain limited cases and
then strict compliance is required to made with
Article 35 of the Qanun-Shahadat, reproduced hereunder:
35. When oral admissions as to contents of
documents are relevant. Oral admissions as to the contents of a document
are not relevant, unless and until the party proposing to prove them shows that
he is entitled to give secondary evidence of the contents of such document
under the rules hereinafter contained, or unless the genuineness of a document
produced is in question.
Permission was not
sought, let alone given, to lead secondary evidence. Therefore, evidence
contrary to the contents of the said agreement could not be led; the said
agreement had to be proved by producing two attesting witnesses. However, only
one out of three attesting witnesses was produced.
7. The question of the requisite
number of witnesses to prove the execution of a document and the role of a
scribe may also be considered from the perspective of Article 17 of the
Qanun-e- Shahadat, which is reproduced hereunder:
Competence and number of
witnesses. (1) The competence of a person to testify, and the number
of witnesses required in any case shall be 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.
8. The agreement was with a lady (the respondent) and under the
agreement a certain amount was stated to have already been paid and the
remainder was to be paid in the future and she was supposed to convey and
deliver possession of her house to the petitioner upon receipt of the balance
payment. Therefore, the agreement was in respect of ‘matters pertaining to
financial or future obligations’ in terms of Article 17(2)(a) of the
Qanun-e-Shahadat and required that such an agreement to be attested ‘by two
men, or one man and two women, so that one may remind the other’. However,
only one attesting witness was produced. For proving a document Article 17(1)
of the Qanun-e-Shahadat states that, ‘The competence of a person to testify,
and the number of witnesses required in any case shall be determined in
accordance with the injunctions of Islam as laid down in the Holy Quran and
Sunnah.’ Therefore, we turn to the Holy Qur’an to seek guidance.
9. Verse 282 of the second chapter, Al-Baqarah, of the Holy
Qur’an comprehensively deals with agreements, including the kind under
consideration:
O ye who believe! when you deal with each other, in transactions involving
future obligations in a fixed period of time, reduce them to writing. Let a scribe
(katibun) write down faithfully as between the parties: let not the scribe
refuse to write: as Allah has taught him, so let him write. Let him who incurs
the liability dictate, but let him fear his Lord Allah. And not diminish aught
of what he owes. If the party liable is mentally deficient, or weak, or unable
himself to dictate, let his guardian dictate faithfully. And get two witnesses,
out of your own men, and if there are not two men, then a man and two women,
such as ye choose, for witnesses, so that if one of them errs, the other
can remind her. The witnesses should not refuse when they are called on
(for evidence). Disdain not to reduce to writing (your contract) for a future
period, whether it be small or big: it is more just in
the sight of Allah, more suitable as evidence and more convenient to prevent
doubts among yourselves. But if it be a transaction which you carry out on the
spot among yourselves, there is no blame on you if you reduce it not to
writing. But take witnesses whenever you make a
commercial contract; and let neither scribe nor witness
suffer harm. If you do (such harm), it would be wickedness in
you. So fear Allah; for it is Allah that teaches you. And Allah is well
acquainted with all things. [the words scribe and
witness/es have been highlighted]
The Holy Qur’an requires that the
number of witnesses should be not less than two men or a man and two women (so
that the one may remind the other if she forgets). However, in the present case
only one attesting witness was produced. Therefore, compliance was also not made
with Article 17(1) and (2) of the Qanun-e-Shahadat and with the injunctions of
Islam.
10. The translator and exegete Abdullah Yusuf Ali explaining
the above verse writes the following under his translation of it:
Commercial morality is
here taught on the highest plane and yet in the most practical manner, both as
regards the bargains to be made, the evidence to be provided, the doubts to be
avoided, and the duties and rights of scribes and witnesses. Probity even in
worldly matters is to be, not a mere matter of convenience or policy, but a
matter of conscience and religious duty.
Even our everyday
transactions are to be carried out as in the presence of Allah.[8]
11. Radical awakening was brought about by the Holy Qur’an and
hitherto before unfamiliar women’s rights were established for the first time
in scripture. A woman’s right to own and dispose of her property; her right to
retain, both before and after her marriage, her income and property; her
ability to do business without permission of her father or husband and keep and
spend what she earns. ‘Men shall have the benefit of what they earn and
women shall have the benefit of what they earn.’[9]
Her entitlement to inherit from her parents and husband is also precisely
ordained in the fourth chapter (an-Nisa) of the Holy Qur’an.[10]
A woman also does not need permission to acquire or dispose of property; what
she inherits is hers and hers alone; neither her husband,
father, brother or son has any entitlement to it; ‘Do not eat up
(consume) one another’s property’.[11]
The bridal gifts given at the time of marriage are the wife’s
property, and remains hers. They can be added to but not taken away.[12]
It is also recommended that husbands make wills to provide for their wives.[13]
Her right to enter into contracts and to witness contracts[14]
the Holy Qur’an mentions in great detail. In this case the respondent lady
denied having entered into the said agreement which the petitioner, an
attesting witness and the scribe testified that she had, however, her solitary
testimony was to be accepted because this is what the law and the injunctions
of the Holy Qur’an mandate.
12. It is of concern that in the Islamic Republic of Pakistan
Qur’anic injunctions are at times relegated in favour of retrogressive
practices; we have criticized this in the case of Fawad Ishaq v Mehreen
Mansoor, [15]
We noted that, ‘A chasm existed between a woman’s position in Islam to that
which prevailed till a century ago in Europe and America where upon marriage a
wife stood deprived of her property, which became that of her husband to do
with it as he pleased.’[16]
It may be useful to reproduce the following three paragraphs from the judgement
as well:
10. We however find
that the old European and American concepts at times permeate into the thinking
even of judges in
11. The situation in
the
12. Discrimination
against women pervaded in other areas too. It was only in 1960 that women in
13. The learned Mr. Piracha says that prudence dictated that
the petitioner should not produce or summon Muhammad Ali, who was an attesting
witness, because he was the husband of the respondent and it was apprehended
that he will deny witnessing his wife signing the said agreement. Merely
because a witness is related to either party does mean he/she stops being a witness nor that he/she should not be
produced/summoned as a witness. The above quoted verse of the Holy Qur’an
states that it is the religious duty of a Muslim to come forward to testify
when called upon to do so - ‘The witnesses should not refuse when they are
called on’ (for evidence). An attesting witness remains a witness irrespective
of his or her relationship to the parties to an agreement. If a witness does
not agree to testify he/she can be summoned through the Court. In the present
case two attesting witnesses namely, Muhammad Ali and Muhammad Nawaz, were not
produced nor compelled to give evidence by being summoned through the Court.
14.
As regards the scribe he was not shown or described as a witness in the said
agreement, therefore, he could not be categorised as an attesting witness. The
cited verse of the Holy Qur’an mentions three times the word scribe (katib) and
five times the witness/es (shahid) but does not use these words
interchangeably, instead separately and distinctively. Therefore, a scribe and
a witness cannot be the same. In Tassaduq Hussain v Muhammad Din[17]
this Court considered Article 17 of the Qanun-e-Shahadat and held,
that:
7. … the provisions of Article 17(2)(a)
encompasses in its scope twofold objects (i) regarding the validity of the
instruments, meaning thereby, that if it is not attested by the required number
of witnesses the instrument shall be invalid and therefore if not admitted by
the executant or otherwise contested by him, it shall not be enforceable in law
(ii) it is relatable to the proof of such instruments in term of mandatory
spirit of Article 79 of The Order, 1984 when it is read with the later. Because
the said Article in very clear terms prescribes “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”.[18]
8. The command of the
Article 79 is vividly discernible which elucidates that in order to prove an
instrument which by law is required to be attested, it has to be proved by two
attesting witness, if they are alive and otherwise are not incapacitated and
are subject to the process of the Court and capable of giving evidence. The
powerful expression “shall not be used as evidence” until the requisite number
of attesting witnesses have been examined to prove its execution is couched in
the negative, which depicts the clear and unquestionable intention of the
legislature, barring and placing a complete prohibition for using in evidence
any such document, which is either not attested as mandated by the law and/or
if the required number of attesting witnesses are not produced to prove it. As
the consequence of the failure in this behalf are provided by the Article
itself, therefore, it is a mandatory provision of law and should be given due
effect by the Courts in letter and spirit. The provisions of this Article are
most uncompromising, so long as there is an attesting witness alive capable of
giving evidence and subject to the process of the Court, no document which is
required by law to be attested can be used in evidence until such witness has been
called, the omission to call the requisite number of attesting witnesses is
fatal to the admissibility of the document. … And for the purpose of proof of
such a document, the attesting witnesses have to be compulsorily examined as
per the requirement of Article 79, otherwise, it shall not be considered and
taken as proved and used in evidence. This is in line with the principle
that where the law requires an act to be done in a particular manner, it has to
be done in that way and not otherwise.[19]
[emphasis has been added]
9. Coming to the proposition canvassed by the
counsel for the appellant that a scribe of the document can be a substitute for
the attesting witnesses … It may be held that if such witness is allowed to be
considered as the attesting witness it shall be against the very concept, the
purpose, object and the mandatory command of the law highlighted above.[20]
And, in an earlier case, Nazir Ahmad v
Muzaffar Hussain,[21]
it was held, that:
Article 17(2)(a) of the Qanun-e-Shahadat
Order, 1984, provides that “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”.’
