دیوانی مقدمات میں منحرف گواہان

 Hostile witnesses in civil cases.

: 2011 PLD 241 SUPREME-COURT

Side Appellant : Hafiz TASSADUQ HUSSAIN

Side Opponent : MUHAMMAD DIN through Legal Heirs

S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 17, 72 & 79---agreement to sell---Execution---Proof---Scribe of document, evidence of---Requirement of two attesting Witness es---Suit filed by plaintiff was dismissed by Trial Court on the ground that he failed to produce two marginal Witnesses in proof of execution of agreement to sell---Judgment and decree passed by Trial Court was maintained by Lower Appellate Court and High Court---Validity---Transaction of sale of immovable property (if not a conditional sale) was the conclusive transfer of an absolute title and ownership of property unto the vendee in presentee, while agreement to sell was meant for accomplishing the object of sale in futurity and for all intents and purposes it pertained to future obligations of the parties thereto---Sale agreement /agreement to sell was. duly covered and fell within the pale of Art.17 of Qanun-e-Shahadat, 1984---Purpose and object of attestation of document by certain number of Witness es and its proof through them was meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and thus legislature in its wisdom had established class of documents which were specified in Art.17 of the Qanun-e-Shahadat, 1984---For validity of instruments falling within Art.17 of Qanun-e-Shahadat, 1984, the attestation as required therein was absolute and imperative---For the purpose of proof of such a document, attesting Witness es had to be compulsorily examined as per requirement of Art.79 of Qanun-e-Shahadat, 1984, otherwise it was not to be considered and taken as proved and used in evidence---Such principle of law was in line with the principle that where law required an act to be done in a particular manner, it had to be done in that way and not otherwise---Scribe of a document could only be a competent Witness es in terms of Arts.17 and 79 of Qanun-e-Shahadat,1984, if he had fixed his signature as an attesting Witness of the document and not otherwise---Signing of document in the capacity of a writer did not fulfil and meet mandatory requirement of attestation by him separately---Scribe of document could be examined by concerned party for corroboration of evidence of marginal Witness es or in the eventuality those were conceived by Art.79 of Qanun-e-Shahadat, 1984, itself not as a substitute---Mandatory provisions of law had to be complied and fulfilled and only for the reasons or the perception that such attesting Witness if examined would turn hostile did not absolve the concerned party of its duty to follow the law and allow the provisions of Qanun-e-Shahadat, 1984, relating to hostile Witness take its own course---Supreme Court declined to interfere in the judgments and decrees passed by the Courts below---Appeal was dismissed.