IN THE SUPREME COURT OF PAKISTAN  
(Appellate Jurisdiction) 
 
 
 
 
 
PRESENT: 
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL 
MR. JUSTICE QAZI MUHAMMAD AMIN AHMED 
 
 
Civil Petition No.3097/2015 and Civil Appeal No.1074/2015  
(On appeal from the judgments dated 29.9.2015 passed by the Peshawar High 
Court, D.I.Khan in C.R.No.65-D/2014 & CR-93-D/2014). 
 
 
Abdul Hameed  
 
 
 
 
 
 
…Petitioner/Appellant 
(In both cases) 
 
Versus  
 
Jahangir Khan 
..Respondent  
(In both cases) 
 
 
For the petitioner/appellant: Syed Mastan Ali Shah, ASC 
 
 
 
 
 
Mr. Mehmood A. Sheikh, AOR  
 
 
 
 
 
(In both cases) 
 
 
For the respondent: 
 
Malik Qamar Afzal, ASC 
(In both cases)  
 
 
 
 
Date of hearing: 
 
 
09.7.2020 
 
 
 
 
  
 
JUDGMENT  
 
 
 
 
Mazhar Alam Khan Miankhel,  J-.  
 
 
 
 
 
A piece of land measuring 100 kanals situated in village 
Yaara Manjhi Khel, Tehsil & District Dera Ismail Khan (fully described in 
the plaint) was given to one Abdul Hameed son of Haq Nawaz (the 
petitioner) as a grant under Para-18(3) of ‘The Land Reforms Regulation, 
1972’ (M.L.R. No.115) and a mutation No.204 was also attested on 22nd 
of June, 1992 in his favour. The same accordingly was incorporated in 
the revenue record in the name of petitioner. This mutation and its 
incorporation in the revenue record made the petitioner a full owner of 
C.P.No.3097/2015, etc 
2
the land. The suit land and most of the adjoining lands are admittedly 
barren lands since long and as such recorded as ‘banjar qadeem’ in the 
revenue record. Such barren lands under the law, are shown in 
possession of the owners and the petitioner being owner was also 
recorded as in possession of the land as reflected in copy of Record of 
Rights and khasra girdawari (Ex-PW-1/1 and Ex-PW-1/3 respectively). 
The only source of irrigation in the area is heavy rains. The petitioner in 
the year 2008 entered into an agreement to sell (the agreement) 
regarding the landed property referred above (the property) with one 
Jahangir Khan son of Muhammad Anwar (the respondent) against a sale 
consideration of Rs.7,00,000/- (Rupees seven lac). The sale consideration 
so agreed was paid to the petitioner as per details given in the sale 
agreement (Ex-PW-5/1). The agreement also contained a penal clause 
that in case vendee fails to pay the balance amount i.e. Rs.2,00,000/- 
(Rupees two lac) within the stipulated time, (20th March, 2009), the 
earnest money of Rs.5,00,000/- (Rupees five lac) would stand forfeited 
and the agreement would be deemed cancelled. Besides the above, a 
penal clause for the vendor was also there that if the vendor fails to 
perform his part of the agreement, he would be liable to pay back the 
sale consideration he received and would also be liable to pay 
Rs.500,000/-(Rupees five lac) as compensation. 
 
2. 
 
The 
respondent 
was 
constrained 
to 
file 
a 
suit 
for 
declaration/possession/specific performance on failure of the petitioner 
to abide by the commitments he made through the agreement. The 
respondent in his suit alleged his complete ownership of the property 
after completion of sale, delivery of possession of the property and 
payment of entire sale consideration. So, also asked for a declaration 
besides specific performance of the agreement. The petitioner through his 
C.P.No.3097/2015, etc 
3
written statement denied altogether the very existence of the agreement 
by alleging the same as fake and frivolous. After a regular trial, suit of 
the respondent was decreed by Civil Judge-V-Dera Ismail Khan vide his 
judgment and decree dated 10th September, 2012. The petitioner being 
aggrieved, filed an appeal against the same. The appellate court modified 
the judgment and decree of the trial court and disposed of the appeal in 
the following terms:-  
 
“i. 
Defendant/appellant Abdul Hameed is obliged to either get 
the sale completed through attestation of mutation in 
favour of plaintiff Jehangir Khan within one month from the 
date when instant decree attains finality or he may opt  to 
return the sale price Rs.700,000/- alongwith Rs.500,000/- 
as compensation to plaintiff within the same period. 
Defendant shall convey which of the two options he would 
exercise before the Executing Court. 
ii. 
If defendant does not exercise any of the said options, 
mutation shall be attested within one month of finality of 
decree and suit land shall become the ownership of plaintiff 
absolutely to the exclusion of defendant. If plaintiff is not 
already in possession, he shall immediately be placed in 
possession thereof thereafter. 
iii. 
In case defendant opts to pay back the sale price and 
compensation, the agreement between the parties shall 
stand rescinded and if possession is with plaintiff, it shall 
revert back to defendant at the time of payment of said 
amount. 
iv. 
Since defendant took a frivolous defense, he shall also pay 
to plaintiff the cost of suit and this appeal alongwith 
compensatory cost of Rs.10,000/”-. 
 
The manner and the mode, the appeal was disposed of by the appellate 
court, both the petitioner and the respondent filed their separate Civil 
Revisions before the Peshawar High Court, Bench Dera Ismail Khan. Civil 
Revision filed by the respondent (CR-93-D/2014) was accepted resulting 
in restoration of trial court’s decree while Civil Revision of the petitioner 
C.P.No.3097/2015, etc 
4
(C.R.No.65-D/2014) was dismissed through a common judgment and 
decree dated 29th September, 2015.  
 
3. 
 
The petitioner still not satisfied with the findings, filed a Civil 
Petition for Leave to Appeal of this Court against dismissal of his 
Revision Petition ibid and a direct appeal against acceptance of 
respondent’s Civil Revision ibid but the judgment and decree dated 29th 
September, 2015 of both the Civil Revisions, impugned herein, is 
common. So, we would also like to decide both the matters                        
(C.P. 3097/2015 & C.A.1074/2015) through this single judgment.  
 
4. 
 
We have heard the learned counsel for the parties and have 
gone through the entire record of the case.  
 
5. 
 
 Perusal of the record reveals that the bone of contention 
between the parties is an agreement to sell dated 18th December, 2008 
(Ex-PW-5/1). The respondent being beneficiary of the agreement and 
fully aware of the bounden duty laid down by the law on him, has fully 
proved the transaction between the parties, execution of the agreement 
and its contents by producing one Ayaz Balouch (PW-2), the scribe, Haji 
Shams-ud-Din, (PW-3), the property dealer/middleman/negotiator of the 
transaction between the parties, witness of making payment of sale 
consideration to petitioner/vendor through his hands and also the 
attesting/marginal witness of the agreement, Abdul Waheed, (PW-4), the 
other attesting/marginal witness to the agreement. To further strengthen 
the above evidence, respondent also appeared as a witness, PW-5. The 
stance of the petitioner was a simpliciter denial and he also tried to take 
a shelter under MLR 115 regarding a ban/bar of alienation of land 
received in grant, for a specific period. Copy of mutation No.204 attested 
on 22nd June, 1992 (Ex-DW-1/1) was brought on the record by Abdul 
C.P.No.3097/2015, etc 
5
Qadeem ADK/DW-1. DW-2 Fazal-ur-Rehman, Gardawar, produced a 
letter showing the names of proposed villages falling in the command 
area of Gomal Zam Canal/project, whereas petitioner himself appeared 
as DW-3. 
 
6. 
 
Perusal of the entire evidence and the available record makes 
it abundantly clear that there was an agreement to sell between the 
parties and the petitioner had tried to deceive and mislead by denying 
the transaction but he miserably failed in his attempt to rebut the 
evidence led by the respondent. Simple denial in such like situations 
cannot be considered as sufficient to ignore the material evidence 
available on the record. Record of the case shows that no criminal or civil 
proceedings whatsoever were initiated by the petitioner against the 
respondent or the petition-writer who scribed the said agreement to 
justify and support his stance of denial. CNIC number of the petitioner 
was there alongwith his signatures on the agreement (Ex-PW-5/1) and 
there is no explanation and any action by him in this regard. Record 
produced by PW-2, would also reflect that brother of the petitioner, who 
also being a grantee of similar piece of land with same terms, had sold 
away his property to respondent against the same amount of sale 
consideration and that agreement was also scribed by PW-2 and said 
Haji Shams-ud-Din was also marginal witness to that deed. The role of 
Haji Shams-ud-Din, what appears from the record, is not simpliciter of a 
attesting/marginal witness rather he being a broker/property dealer 
negotiated a bargain with petitioner for respondent and a look at the 
statement of PW-5, Jahangir Khan, respondent, makes it abundantly 
clear that he is a truthful witness. He has narrated the chain of events in 
the manner, the same happened.  
 
C.P.No.3097/2015, etc 
6
7. 
 
The main stress of the learned ASC representing the 
petitioner was that the attestation of the agreement in question was in 
violation of the definition provided in Section 3 of the Transfer of Property 
Act, 1882 (The Act) and his other limb of argument was that the 
respondent being beneficiary of the agreement was legally bound to prove 
the execution of the deed as required under Article 79 of the Qanuna-e-
Shahadat Order 1984 (Qanuna-e-Shahadat). He further argued that the 
petitioner being a grantee of the land in question was not legally 
competent to alienate his property for a specific period as contemplated 
in the provisions of MLR 115. 
 
8. 
  
We have also considered the case of the petitioner from this 
angle. Much stress was given on the argument that the sale agreement 
has not been attested as per requirements of Section 3 of the Act ibid. 
For ease of reference the word “attested’’ provided in Section 3 ibid is 
reproduced here-in-below:- 
“3. 
Interpretation clause.- ………………………………………….. 
 
 
“Immovable property” …………………………………………………….. 
 
 
“Instrument” …………………………………………………………………. 
 
 
“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 
acknowledgement 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; (Emphasis supplied)   
“Registered” ………………………………… 
“Attached to the earth” ……………………….. 
C.P.No.3097/2015, etc 
7
“Actionable claim” ……………………………… 
“A person is said to have notice……………………..” 
 
Yes! a specific mode and manner of attestation of an instrument by two 
or more witnesses has been provided but the matter would not end here. 
This only refers to the mode of attestation of an instrument. The said 
instrument also requires to be proved under Qanun-e-Shahadat. Once it 
is proved in line with the different modes of proof of a document provided 
by Qanun-e-Shahadat according to the facts and circumstances of the 
case, only then, it can be relied upon and considered in support of a 
person claiming benefit of the same. When we see the very evidence 
brought on the record to prove the sale agreement, the same makes it 
clear that the document has been proved in accordance with the 
requirements of the Qanun-e-Shahdat, the scribe, the marginal/attesting 
witnesses, the man who negotiated the bargain between the vendor and 
the vendee appeared and supported the stance of respondent. The 
factum of payment of sale consideration to vendor also goes un-rebutted 
and un-shattered. The law on the subject is very much clear and settled. 
We cannot confine ourselves to that definition of attestation alone which 
in the end provides “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”. Presence of other 
attesting witness Haji Shams-ud-Din, PW-3 has also been admitted by 
the witness. So, the argument of the learned counsel regarding defective 
attestation under Section 3 of the Act does not get any support from the 
record and the law. In presence of such overwhelming evidence on the 
record, we don’t think that the argument advanced by the learned 
counsel would affect validity or enforceability of the agreement. We may 
add further that attestation and proof of a document are two different 
C.P.No.3097/2015, etc 
8
and distinct/independent aspects. Contract/agreement of sale need not 
be in writing always. It can be oral as well. Offer and acceptance of a sale 
contract can also be implied but when terms and conditions of a sale are 
reduced into writing between the parties, then in that case that 
document of sale requires attestation as contemplated in Section 3 of the 
Act. When the sale agreement gets a shape in black and white then, it 
requires proof in line with the different modes of proof provided in 
Qanun-e-Shahdat as per requirements of the case. Reference can also be 
made to a five Member judgment of this court in the case of Muhammad 
Sattar v. Tariq Javaid (2017 SCMR 98).  
 
 
 
 
We are living in a society wherein such like things are 
happening as a matter of routine. The parties due to lack of legal 
knowledge ask friends/persons available at the moment to sign the 
document as a witness and the witnesses also being unaware of the legal 
requirements sign the documents. We are also aware of the fact that fake 
and frivolous documents are also prepared by maneuvering the presence 
of two witnesses. We cannot shut our eyes to these aspects. These are 
the realities of practical life happening in the daily routine around us. 
Yes! If an objection regarding admissibility and genuineness of a 
document is raised by a party, then it will carry a heavy weight if the 
party denying the execution of a document does not stop there but takes 
a strong action under the law against the attempt made on his civil 
rights attached to the property. It is on the record that no such action 
was initiated by the petitioner against anybody and the learned counsel 
for the petitioner when asked during the course of arguments in this 
regard, he frankly conceded the fact that till date no such action has 
been taken.  It is humanly impossible that a valuable property of a 
person is being fraudulently alienated and he simply denies the 
C.P.No.3097/2015, etc 
9
execution and only defends the litigation of the person who is going to 
grab his property through fraudulent means. We do agree with the case 
law relied upon by the learned counsel in the case of Sardar Ali v. Sardar 
Bibi (2010 SCMR 1066) but the same in the peculiar circumstances of 
the case is not applicable and distinguishable. So, in view of the above 
discussion, we have no hesitation to hold that the respondent not only 
proved the execution of the document but also the contents of the 
document and the petitioner bitterly failed to rebut the evidence led by 
the respondent.  
 
9. 
 
Now comes the last argument that the petitioner was not 
legally competent to enter into a bargain of sale because of 
ban/restrictions under MLR 115. Perusal of the record in this regard 
would reveal that no doubt the petitioner has taken an objection in his 
written statement and has also asserted the same fact in his statement 
before the court but besides the above there is nothing else on the record 
to confirm his stance. Even the order of allotment issued by the Deputy 
Land Commissioner has not been tendered in evidence to consider and 
evaluate the nature of such bar, if any. Copy of mutation No.204 ibid, 
Ex-PW-1/1 is also silent in this regard and shows him a complete owner 
without any sort of ban or restrictions. When proprietary rights are 
transferred in full by the government then no such bar can be imposed. 
If at all there was a bar on further alienation for any specific period, then 
that period now has elapsed during pendency of the suit and there 
remains no clog on further alienation when the agreement between the 
parties has been proved through an overwhelming evidence. We may add 
further that once a person enters into an agreement of genuine sale, then 
there remains no moral or legal justification for him to challenge the 
validity of such sale. He being “in pari delicto” cannot take any advantage 
C.P.No.3097/2015, etc 
10
of any defect in sale. Sale of land (when proved) even if in violation of 
MLR 115 or Section 54 of the Act, 1882 ibid, cannot be held to be void 
ab-initio. This court is of the considered view in this regard and we can 
make reference to the cases of Mohd. Saeed v. Province of West Pak.(PLD 
1964 SC 572), Fakhar Imam Shah v. Abdul Haq (2006 SCMR 550) and 
Sakhi Jan v. Shah Nawaz (2020 SCMR 832). 
 
10. 
 
In view of the aforesaid reasons, both Civil Petition 
No.3097/2015 & Civil Appeal No.1074/2015 are dismissed with costs. 
All the pending CMAs are also dismissed. Before parting with the 
judgment we may add that respondent is in litigation since 2010 because 
of the conduct of the petitioner as reflected from the record and 
discussed above, process of execution of decree should be completed 
within three months positivity.   
11. 
 
Short order of even date is reproduced herein-below for 
ready reference:-  
“For the reasons to follow, these cases (Civil 
Petition 
No.3097/2015 
and 
Civil 
Appeal 
No.1074/2015) are dismissed”. 
 
 
Judge 
 
 
 
 
Judge  
Islamabad, the   
09th July, 2020 
Sarfraz /-‘ 
 
“APPROVED FOR REPORTING”.