ASAD-UR-REHMAN vs USMAN SHAHID arts — 2023 PLD 84 HIGH-COURT-AZAD-KASHMIR

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ASAD-UR-REHMAN VS USMAN SHAHID arts. 17 & 79---Suit for specific performance of agreements to sell and cancellation of gift deed--- appellants mainly pressed that respondents/plaintiffs failed to prove the execution of agreements as required under arts. 17 & 79 of Qanun-e-Shahadat, 1984, because they failed to produce two attesting witnesses of the agreements, thus, the suit was liable to be dismissed---Validity---Respondents/plaintiffs produced one marginal witness who deposed that agreements to sell were written and signed in his presence and he also verified his signatures on the said agreements---Petition writer deposed that agreement to sell was handed down by him in accordance with the consent and deposition of both the parties---as petition writer stated in his statement that he wrote agreement to sell and signatures and thumb impressions of executant were put in his presence, hence he could be considered as an attesting witness of the agreement to sell because as mentioned above, the attesting witness is the one who had observed a document being executed and also signed the same as a witness---Normally scribe of an agreement to sell was not a substitute for an attesting witnesses and did not legally qualify to be so, therefore, his evidence may have a supportive value but neither is it in line with the mandate of law nor did it meet the test of art. 79 of Qunun-e-Shahadat, 1984, but in the present case, scribe deposed that executant put his signature and thumb impression in his presence, thus scribe of the document was also an attesting witness, hence the requirement of art. 17 of Qanun-e-Shahadat, , 1984, was fulfilled---appeal was dismissed, in circumstances. Head NotesCase Description Citation Name: 2023 PLD 84 HIGH-COURT-AZAD-KASHMIRBookmark this Case ASAD-UR-REHMAN VS USMAN SHAHID art.79---Suit for specific performance of agreements to sell and cancellation of gift deed---Where one of attesting witnesses dies---Effect---Under art. 79 of Qanun-e-Shahadat, 1984, an agreement to sell being an instrument pertaining to financial or future obligation would not be used in evidence unless at least two attesting witnesses were examined for such purpose, provided that they were alive and capable of evidence---For beneficiary of an agreement to sell, it is mandatory to produce two attesting witnesses to prove the execution of the agreement, however, producing two attesting witnesses is subject to condition that they are alive and capable of giving evidence---In the present case, one of marginal wittiness of agreement had died due to which he could not be produced as witness, however, perusal of record revealed that statement of said wittiness was recorded in the court in another suit filed by the respondents/plaintiffs which was decreed ex parte and said witness verified his signature and also deposed that vendor agreed to sell the land along with shop to plaintiff and had received consideration amount---Said statement of deceased witness had been made part of the file of the Trial Court, thus, the plaintiff succeeded to prove the execution of agreement to sell----appeal was dismissed, in circumstances. Head NotesCase Description Citation Name: 2023 PLD 84 HIGH-COURT-AZAD-KASHMIRBookmark this Case ASAD-UR-REHMAN VS USMAN SHAHID art.79---Suit for specific performance of agreements to sell and cancellation of gift deed---Scribe of document as a witness---Scope---attesting witness is one who not only witnessed a document being executed but also signed it as a witness---Person who writes or scribes a documents is as good witness as anybody else, if he had signed the document as a witness---Where in addition to one of the marginal witnesses scribe of the document appears in the Trial Court and deposes that agreement was scribed by him and thumb impressions and signatures were put by the defendant such statement of the writer can be considered to be a statement of marginal witness. Head NotesCase Description

ASAD-UR-REHMAN vs USMAN SHAHID arts — 2023 PLD 84 HIGH-COURT-AZAD-KASHMIR

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