11/06/2026
Article 79 of the Qanun-e-Shahadat Order 1984, (Section 68 of the Evidence Act, 1872) is germane to the proof of ex*****on of document required by law to be attested which cannot be used as evidence until "two attesting witnesses" at least are called for the purpose of proving its ex*****on, if there be two attesting witnesses alive and subject to the process of the court and capable of giving evidence. In fact this Article is reproduction of Section 68 of the Evidence Act, 1872 with the difference that, under it only one attesting witnesses was required to prove the document rather than two. The evidence recorded in the Trial Court reflects that the appellant produced his brother PW Khaliq Dino as attesting witness of the agreement to sell but another attesting witness Hashim son of Allah Warrayo Behrani was not produced nor any justification or reason of not calling him was assigned.
The PW Muhammad Umar, the vendor, only identified the parties whereas the Ex.69/J does not bear the signature of PW Zaheer Ahmed Abro. The omission or oversight of not calling both the attesting witnesses is detrimental and adversative to the admissibility of the document. The attestation and ex*****on both have distinct characteristics. The ex*****on of document attributes signing in presence of attesting witnesses including all requisite formalities which may be necessary to render the document valid. While the fundamental and elemental condition of valid attestation is that two or more witnesses signed the instrument and each of them has signed the instruments in presence of the executants. This stringent condition mentioned in, Article 79 is uncompromising. So long as the attesting witnesses are alive, capable of giving evidence and subject to the process of Court, no document can be used in evidence without the evidence of such attesting witnesses. The provision of this Article is mandatory and noncompliance will render the document inadmissible in evidence. If ex*****on of a document is specifically denied, the best course is to call the attesting witnesses to prove the ex*****on. When the evidence brought forward by a party to prove the ex*****on of a document is contradictory or paradoxical to the claim lodged in the suit, or is inadmissible, such evidence would have no legal sanctity or weightage.
In the case of Hafiz Tassadug Hussain v. Muhammad Din through Legal Heirs and others (PLD 2011 SC 241); the Court held in paragraph 8 that the command of the Article 79 of the Qanun-e-Shahadat Order, 1984 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 witnesses, 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 ex*****on 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 cither not attested as mandated by the law and/or if the required number of attesting witnesses are not produced to prove it. As the consequences 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. It was further held that the 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. In the case of Nazir Ahmad and another v. M. Muzaffar Hussain (2008 SCMR 1639), the Court held that: "Attesting witness was the one who had not only seen the document being executed by the executant but also signed same as a witness. Person who wrote or was 'scribe' of a document was as good a witness as anybody else, if he had signed the document as a witness (Emphasis supplied) No legal inherent incompetency existed in the writer of a document to be an attesting witness to it". Whereas in the case of N. Kamalam and another v. Ayyasamy and another (2001) 7 Supreme Court cases 507), it was held that: "Evidence of scribe could not displace statutory requirement as he did not have necessary intent to attest." In Badri Prasad and another v. Abdul Karim and others (1913 (19) IC 451), it was held: "The evidence of the scribe of a mortgage deed, who signed the deed in the usual way without any intention of attesting it as a witness, is not sufficient to prove the deed."