2017 PLP 352 (YLRN)

CH. MUHAMMAD MASOOD JAHANGIR, J.

By filing the instant civil revision, the petitioner has challenged the judgment and decree dated 01.06.2002 whereby suit of specific performance of agreement to sell was dismissed by the learned civil court, Mailsi and judgment and decree dated 12.10.2004 rendered by learned Addl. District Judge, Mailsi by virtue of which appeal filed by the petitioner was also dismissed.

2. Arguments of learned counsel for the petitioner heard and record perused.

3. Admittedly, only Zafar lqbal, out of two alleged attesting witnesses of disputed agreement to sell (Ex.P/1) was produced as PW/3 whereas Syed Nazir Hussain other alleged attesting witness was not brought into the witness-box. Under Article 17 read with Article 79 of the Qanun-e-Shahadat Order, 1984 it is provided that in matters pertaining to financial or future obligations, if reduced into writing, the instrument shall be attested by two men or one man and two women and that such document cannot be used as document until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive and subject to the process of the Court and capable of giving evidence. These provisions are very clear to the effect that so long as there is attesting witness alive, capable until witness has been called, the omission to produce an attesting witness is fatal to the admissibility of the document. It is also noteworthy that a combined reading of the provisions contained in Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 indicates that there are two distinct aspects, which are often lost sight of. One aspect pertains to the mode in which the transaction may be legally effected. It should be kept distinct from the question as to how the deed embodying the transaction may be proved. Prior to the promulgation of the Qunane-Shahadat Order, 1984, there was a requirement under section 68 of the Evidence Act, 1872 that if a document was required to be attested, it shall not be used as evidence until one witness at least was called for the purpose of proving its execution whereas according to Articles 17 and 79 of the Qunan-e-Shahadat Order, 1984, it should be proved that two witnesses had appended their signatures as attesting witnesses and they must be produced for proving the contents of the document. In arriving at this view, I am fortified by the dictum laid down by the apex court in the judgment reported as Farid Bakhsh v. Jind Wadda and others (2015 SCMR 1044) and Mst. Rasheeda and others v. Muhammad Yaqoob and others (2002 SCMR 1089). The stance of the petitioner that agreement (Ex.P/1) being a registered document attained presumption of truth and did not require to be proved by producing its two attesting witnesses is also misconceived. There is no distinction between an un-registered agreement or registered one and being beneficiary the petitioner was required to prove the valid execution of Ex.P/1 as well as the transaction embodied therein, which might have taken place at some prior point of time by producing at least its two attesting witnesses under the provisions of law referred to above.

4. The contention of learned counsel for the petitioner that by producing Deed Writer as PW-1, the contents of Ex.P/1 were fully proved is without any substance. The perusal of agreement (Ex.P/1) reveals that PW-1 did not sign the same being marginal witness. Even his statement is silent to the extent that any sale consideration was paid in his presence. It is settled principle of law by now that a scribe or any body else who did not put his signatures on the document as attesting witness cannot be considered as such. Reliance in this respect is placed upon the judgments reported as Muhammad Sarwar Khan v. Salamat Ali (2012 CLC 94) and Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs (PLD 2011 SC 241).

5. No doubt, the other submission of learned counsel for the petitioner that during pendency of appeal, the petitioner had moved an application under Order XLI, Rule 27 of the Code of Civil Procedure, 1908 for production of Syed Nazir Hussain, the other marginal witness in additional evidence, but the learned lower appellate court without adverting to the same decided the main appeal filed by the petitioners and the appeal requires to be remanded to the learned lower appellate court for deciding fate of the said application has some force, but on this score alone. I am not inclined to remand the appeal to the learned lower appellate court to again throw the parties to face the agony of litigation out of which no other/different result will arise. The suit was filed by the petitioner before the learned trial court on 24.11.1997 and after an elapse of 4 1/2 years, the same was decided but the other witness of the agreement was not produced despite its availability. The learned lower appellate court also took another two years to decide the same and if the application under Order XLI, Rule 27 of the Code of Civil Procedure, 1908 was moved by the petitioner, then why without pressing the same, the main appeal was argued by the petitioner. This court acknowledges that there are some judgments of the superior court on the preposition in hand that if any material application is left unattended by the learned lower appellate court and the appeal is finally decided then the appeal was to be remanded. With all respect to the said judgments it is also settled principle that each and every case is to be decided on its own merits. In the present case the other attesting witness was available with the petitioner, but was not produced at the proper time before the learned trial court and till the disposal of the suit no such application was also moved to produce him in additional evidence as it is settled principle of law that a party cannot be given a chance to fill up the lacunas, which he had left in his evidence. No doubt, a ground has been taken by the petitioner in the memo of revision, but copy of such application is not available on the record of the instant file. The request for additional evidence can be allowed, if it is found that production of such evidence at the relevant point of time was beyond the control of the party, which seeks to produce the same or the court required the same for the just decision of the case, but no such ground is available in the present case.

6. On merits, the learned counsel for the petitioners has failed to point out any illegality and misreading or non-reading of evidence on the part of the learned courts below to declare the impugned judgments and decrees without jurisdiction, ultra vires and against law, which are maintained and the instant civil revision being devoid of any force is dismissed. ZC/F-40/L Revision dismissed.