اگرچہ کسی دستاویز کو ثابت کرنے کے لیے دو گواہوں کا ہونا لازم ہے ،لیکن اگر دستاویز لکھوانے والا یہ اعتراف کر جائے / مان جائے تو ایسے دستاویز کو دو گواہان کے ذریعے ثابت کرنا لازم نہیں بلکہ ان میں کوئ ایک کے ذریعے بھی ثابت کیا جاسکتا ہے ۔۔۔۔۔

 There is no cavil to the proposition that for the purposes of proof of a document falling under the purview of Article 17 of the QSO, two attesting witnesses must be examined as per requirement of Article 79 thereof. However, the rigors and clutches of the said requirement envisaged under Article 17, read with 79 of QSO, subside where the execution of a document is admitted. In such like situation, the plaintiff is not bound to produce both the marginal witnesses in order to prove the execution of the agreement.

Article 81 is an exception to the general rule that where a document is required by law to be attested, the same cannot be used in evidence unless two attesting witnesses are called for the purposes of proving its execution. The simple reading of Article 81 shows that where the execution of a document is admitted by the executant himself, the examination of attesting witnesses is not necessary. As the agreement in the instant case had been admitted in the prior suit filed by the respondent against the appellant, by recording statement before the Trial Court, the non-production of both the marginal witnesses is not fatal to the case of the respondent. Moreover, in terms of Article 91 of the QSO, presumption of genuineness is attached to documents forming part of the judicial proceedings.

Suit for specific performance of the contract based on an agreement to sell can be decreed even if the second marginal witnesses of the agreement is not produced by the vendee in compliance of Article 79 of QSO in cases which fall within the purview of Article 81 which is an exception to the rule contained under Article 79 of the QSO.

RSA No.230/2016
Muhammad Islam Versus Bagh Ali (deceased) through LRs.
Date of Hearing: 23.01.2024