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Civil Revision No. 1916/1) of 1985, decided on 6th October, 1986.

‑‑‑S.2‑‑Qanun‑e‑Shahadat Order (10 of 1984), Art. 78‑‑Will‑‑Making of‑‑Proof‑‑Competency of witness charged of criminal offence‑‑Mere pendency of criminal case against marginal witness of document embodying will in dispute, held, was not a cogent reason for rejecting testimony of such witness particularly when such witness admittedly was later on acquitted in said case‑‑Evidence of marginal witness of document of will in dispute could not be discarded simply because such witness was closely related to maker of will.‑‑[ Muhammadan Law].

‑‑‑S. 2‑‑Will‑‑Making of‑‑Challenged on ground of insanity of maker‑ Petitioner challenging validity of Will in dispute on ground of insanity of maker of Will, simply stating that maker of Will remained under treatment with doctors and Hakeems‑‑Petitioner neither examined any such doctors or Hakeem nor produced any medical certificate to prove his plea‑‑Will in dispute, held, could not be struck down on ground that maker thereof, was not of sound mind at time when same was made by him.‑‑[ Muhammadan Law].

Ch. Muhammad Abdullah for Petitioners.

This judgment shall dispose of the civil revision in hand, namely, Civil Revision No. 1916/D of 1985 as well as Civil Revision No. 1917/1) of 1985.

2 These civil revisions relate to certain land left by one Allah Ditta. He died issueless. On his death, 1/3rd of his land was mutated in favour of the respondents, Mst. Rasoolan Bibi and others, on the basis of a Will alleged to have been made by Allah Ditta in their favour and the remaining land was mutated in favour of the petitioner, Ali Muhammad as his legal heir. The mutation attested in this behalf was challenged by the petitioners contending that Allah Ditta did not make any Will. They claimed whole of the land left by him and sought declaration in this regard. On the other hand, the respondents filed suit for possession of 1/3rd of the land mutated in their favour. Both the suits were consolidated and following issues were framed therein:‑

(1) Whether deceased Allah Ditta made any valid Will in favour of Rasoollan Bibi, etc. defendants

(2) Relief.

After recording parties' evidence, the Civil Judge, who was seized of the suits, decided issue No. 1 in favour of the petitioners and against the respondents. Resultantly, he decreed the suit of the petitioners and dismissed that of the respondents. Respondents went in appeal against the judgments and decrees passed by the learned Civil Judge. The Additional District Judge who heard the appeals accepted both of them by reversing findings of the learned trial Court on the above issue, relating to the will in question. Consequently, petitioners' suit was dismissed and the respondents' suit decreed. The petitioners have, therefore, filed the above two revision petitions.

3. It was contended by learned counsel for the petitioners that the witnesses produced by the respondents to prove the Will in dispute were rightly disbelieved by the learned trial Court and that the learned Additional District Judge committed material irregularity in relying on their testimony.

4. Document embodying the Will in dispute is Exh.P.l. Its execution was proved by the respondents by examining Sardar Ahmad and Muhammad Sarwar, who are its marginal witnesses. The learned Civil Judge did not rely on the statement of Sardar Ahmad on the ground that there was an abduction case pending against him. As regards Muhammad Sarwar, his testimony was discarded by the learned Civil Judge on the ground that he was Shareek of Allah Ditta deceased. View taken by the learned Additional District Judge was that the reasons given by the learned trial Court for rejecting the evidence of Sardar Ahmad and Muhammad Sarwar were not valid. Relying on their depositions, therefore, he reversed the finding of the learned trial Court regarding execution of the Will by Allah Ditta.

5. I find myself in agreement with the learned appellate Court on the point that the pendency of abduction case against Sardar Ahmad was not a cogent reason for rejecting his testimony. During the course of arguments, it was submitted by learned counsel for the respondents that Sardar Ahmad was acquitted in the said case and this fact was not disputed by learned counsel for the petitioners. It has been stated o by the learned Additional District Judge that by saying that Allah Ditta deceased was his Shareek, Muhammad Sarwar wanted to convey that he belonged to the brotherhood of the deceased. In villages, the word Shareek is generally used for a collateral. Even if Muhammad Sarwar was closely related to Allah Ditta, this did not constitute a sound reason for rejecting his evidence. I, therefore, endorse the view of the learned appellate Court that the evidence of Sardar Ahmad and Muhammad Sarwar was wrongly discarded by the learned trial Court.

They have proved the document incorporating the Will in dispute. It was, therefore, rightly held by the learned Additional District Judge that Allah Ditta had made the Will in question.

6. In order to assail the said Will, it was also pleaded by the petitioners that Allah Ditta was of unsound mind and, therefore, even if a Will was made by him it was of no legal effect. There is only oral evidence of the petitioners in support of the plea of insanity of Allah Ditta and there is similar evidence of the respondents in rebuttal. The petitioners' case is that Allah Ditta remained under treatment with doctors and Hakims but none of them was examined as a witness. No medical' certificate was produced to show that Allah Ditta was of unsound mind.

It is, therefore, not possible to hold that he was not in a fit mental condition at the time of making the Will in dispute. It may be noted here that learned trial Court also did not record a finding in favour of the petitioners on the question of insanity of Allah Ditta. This is also true of the learned appellate Court. The Will in dispute cannot, therefore be struck down on the ground that the maker thereof was not oil sound mind at the time when the Will was made.

7. There is no merit in either of the civil revisions before me. They are dismissed in limine.

H. B. T./653/L Revision dismissed

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