2017 PLP 398 (YLRN)

ALI AKBAR QURESHI, J.

This civil revision is directed against the judgment and decree dated 04.11.2003, passed by learned District Judge, Lodhran, whereby suit for specific performance of an agreement, filed by the petitioner was dismissed.

2. The main controversy required to be adjudicated by this Court, is regarding the validity of an agreement to sell dated 20.03.2001, relating to land measuring 5 kanals 18 marlas for a consideration of Rs.1,00,000/-.

3. A suit for specific performance of agreement to sell was filed by the petitioner/plaintiff contending therein, that Rs.85,000/- were paid by the petitioner and in response thereof the respondent/defendant handed over the possession of the suit land to the petitioner as a part performance of the contract. As regards the remaining amount it was agreed that the same shall be paid by the petitioner at the time of registration of the sale deed but respondent refused to perform his part of the agreement and the petitioner had to file the aforesaid suit.

4. The learned trial court after completing codal formalities i.e. recording of oral as well as documentary evidence, decreed the suit, against which an appeal was filed by the respondent, which was allowed and the suit of the petitioner was dismissed.

5. Learned counsel for the respon-dent at the very outset of the arguments has raised a preliminary objection that the suit filed by the petitioner is otherwise not maintainable and rightly dismissed by the learned Appellate Court because the petitioner failed to produce the two attesting/ marginal witnesses. Learned counsel has relied upon a judgment of the Hon'ble Supreme Court of Pakistan titled Hafiz Tassaduq Hussain v. Muhammad Din through LRs and others (PLD 2011 SC 241).

6. In response thereof, the learned counsel for the petitioner has submitted that it is true, the petitioner could not produce two attesting/marginal witnesses but the petitioner produced the scribe of the agreement to sell who stated that the agreement was written by him and in their presence the consideration was paid. Learned counsel for the petitioner relied upon the judgments titled Abdul Wali Khan through LRs and others v. Muhammad Saleh (1998 SCMR 760) and Mst. Rasheeda Begum and others v. Muhammad Yousaf and others (2002 SCMR 1089).

7. In order to decide the objection raised by learned counsel for the respondent, the record was perused with the assistance of learned counsel for the parties from where it is found, that the petitioner produced only one marginal witness.

8. The record further reveals, that the petitioner could not place on record anything or offered any satisfactory explanation that why the other marginal witnesses were not produced. The learned counsel for the petitioner has not denied that the other witness was alive and the petitioner, for no reason could not produce the said witness.

9. As regards the contention raised by learned counsel for the petitioner, that the petitioner produced the scribe of the agreement which can be substitute of the marginal witnesses. The argument advanced by learned counsel for the petitioner has no substance in view of the principle laid down by the Hon'ble Supreme Court of Pakistan in the judgment titled Hafiz Tassaduq Hussain v. Muhammad Din through LRs and others (PLD 2011 SC 241), that the scribe of the agreement having appeared as witness to prove the agreement to sell could not assume the role of attesting witness. The relevant paragraphs are re-produced as under:- "

9. Coming to the proposition canvassed by the counsel for the appellant that a scribe of the document can be a substitute for the attesting witnesses; the point on which leave was also granted. It may be held that if such witness is allowed to be considered as the attesting witness it shall be against the very concept, the purpose, object and the mandatory command of the law highlighted above. The question, however, has been examined in catena of judgments and the answer is in the negative.

10. It has been held in Nazir Ahmad and another v. M. Muzaffar Hussain (2008 SCMR 1639):-- "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 in competency existed in the writer of a document to be an attesting witness to it." In N: Kamalam and another v. Ayyasamy and another (2001) 7 Supreme Court cases 503, it has been held:-- "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 is 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. An attesting witness is a witness who has seen the deed executed and has signed it as a witness. (Emphasis supplied)" To the same effect are the judgments reported as Qasim Ali v. Khadim Hussain through legal representatives and others (PLD 2005 Lahore 654) and Shamu Patter v. Abdul Kadir Rowthan and others (1912 (16) IC 250). Therefore, in my considered view a 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 fulfil 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."

10. Another principle laid down by the Hon'ble Supreme Court of Pakistan, while dealing with the proposition in the judgment supra, is as follows:- "However, the provisions of Article 17(2)(a) encompasses in its scope two fold objects (i) regarding the validity of the instruments, meaning thereby, that if it is not attested by the required number of witnesses the instrument shall be invalid and therefore if not admitted by the executant or otherwise contested by him, it shall not be enforceable in law (ii) it is relatable to the proof of such instruments in terms of mandatory spirit of Article 79 of The Order, 1984 when it is read with the later. Because the said Article in very clear terms prescribes "if a document is required by law to be attested, it shall not be used as evidence 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." While the judgments referred by learned counsel for the petitioner are not relevant to the facts of the case.

11. As regards the other merits of the case, the petitioner could not prove the execution of the agreement to sell and payment of consideration through a confidence inspiring and reliable evidence, therefore, the learned appellate court, as evident from the findings rightly appreciated the record and finally dismissed the suit of the petitioner by accepting the appeal filed by the respondent.

12. In view of above, the instant revision petition is dismissed by upholding the judgment and decree passed by the learned appellate court. No order as to cost. ZC/M-20/L Revision dismissed.