2016 PLP 92 (CLCN)

IBAD-UR-REHMAN LODHI, J.

Mohammad Afzal, respondent herein, filed a suit under the provisions of Order XXXVII, Rules 1 and 2, C.P.C. on 20.05.2006, making basis of his suit an agreement dated 01.08.2005, a receipt dated 01.08.2005, and pronote dated 08.11.2005, for recovery of Rs.20,00,000/- (rupees twenty lac only).

2. The suit was contested by the present appellant completely denying any financial transaction or any execution of any document, including agreement, receipt or pronote.

3. In evidence, the plaintiff produced the agreement, pronote and receipt as Exh.P.1, Exh.P.2 and Exh.P.3, respectively. In addition to documentary evidence, the plaintiff besides himself (PW.1), produced three other witnesses viz. PW.2-Zafar Iqbal, PW.3-Mohammad Hussain son of Haji Mohammad Yousaf and PW.4 Mohamamd Hussain son of Mohammad Sher, whereas, the defendant appeared as DW.1 and produced in support of his version Rab Nawaz as DW.2, and in documentary evidence, documents Exh.D.l to Exh.D.8, were produced.

4. The learned trial court proceeded to decree the suit, as prayed for, vide judgment and decree dated 27.05.2008.

5. When this appeal was filed before this Court, on 20.05.2010, with the concurrence of both the sides, the signatures and thumb impressions stated to have been of Mohammad Younas, present appellant, on Exh.P.1, Exh.P.2 and Exh.P.3, were agreed to be compared with his admitted signatures and thumb impressions by the Experts from the Forensic Science Laboratory, and the statements of the said Experts, was ordered to be recorded in the matter. For such purpose, the learned District Judge, Sargodha, was directed to proceed, as a result whereof the admitted signatures and thumb impressions were forwarded to the concerned Experts and the statements of CW.1-Safdar Ali, Sub-Inspector/Finger Print Expert and CW.2-Dr. Aamir Ali Hussain Khan, Director Forensic Science Laboratory, Punjab Lahore, were recorded, and were sent to this Court.

6. The plaintiff has produced the agreement Exh.P.1, pronote Exh.P.2 and receipt Exh.P.3 and even while arguing this appeal, the learned counsel for the plaintiff has stressed that all the documents be read in juxtaposition. Accepting such contention, three documents are placed together, and what brings out from joint reading of the said documents is that, according to the plaintiff, it was a loan transaction and both in the agreement and in the receipt, the status of 'Qarz-e-Hasna' has been assigned to such loan transaction. Even otherwise, certain conditions were attached in case of non-return of said amount within the stipulated period, which includes attachment and disposal of movable and immovable property of the defendant, thus, the requirements of law to the effect that a pronote must be an unconditional document, are not fulfilled in the present case.

7. Both the documents viz. Exh.P.1 and Exh.P.3 were witnessed by Mohammad Hussain son of Mohammad Sher and Mohammad Sharif, but only one Mohammad Hussain has been produced as a witness, thus, the documents relating to financial transaction, could not have been termed as proved, when requirements of Article 79 of Qanun-e-Shahadat Order, 1984, were not fulfilled by production of, at least, two marginal witnesses of the document, constituting any financial liability.

8. The term 'Qarz-e-Hasna' has been defined by this Court in case of Muhammad Anwar Wahla v. Muhammad Tariq Tung (2002 CLC 1779), as a loan, which could not be recovered from the borrower, until he was in a position to repay the same. In view of Tafheem-ul-Qur'an Vol.1 by Maulana Abu-ul-Ala Modoodi, 'Qarz-e-Hasna' is that kind of loan, which is given for the purpose of helping another with an object that it should be payable only, when the borrower is in a position to repay. In case of Dr. M. Aslam Khaki v. Syed Muhammad Hussain and 2 others (PLD 2000 Supreme Court 255), it has been held that, 'Qarz-e-Hasna' is that kind of loan given on compassionate ground, free from interest/mark-up or service charges and repayable if and when the borrower is able to pay. Same definition of 'Qarz-e-Hasna' has been accepted in Badshah Jan v. Allah Ditta Sethi and others (PLD 2013 Islamabad 39).

9. Considering the case keeping in view the factual aspects, it becomes beyond understanding as to why on 01.08.2005, the plaintiff was so magnanimous to the defendant to extend a loan facility of Rs.20,00,000/- (rupees twenty lac only), when, particularly, he while deposing as PW.1, has made a statement on oath as under:- and without any explanation as to what happened within a period of short span of less than two months that again the defendant was believed by such plaintiff to whom only on 29.06.2005, this fact was disclosed that the defendant was a cheat and he was not agreeable to return the huge amount of Rs.45,30,000/- (rupees forty five lac and thirty thousand only), and inspite of getting a criminal case registered against the defendant, which was still pending investigation, he again extended a loan facility of Rs.20,00,000/- (rupees twenty lac only) on 01.08.2005.

10. The statements of CW.1 and CW.2 would add nothing in favour of the plaintiff, as CW.1 has admitted that he is not a notified Finger Print Expert by the Government of the Punjab and further that in order to get comparison of finger prints or thumb marks, at least, 150 distinctive marks are to be adjudged, whereas, at the time of examining the thumb impression of the defendant, he only noted eleven such distinctive points. CW.2, a Director from the Forensic Science Laboratory Punjab, Lahore, has given his evidence to the following effect:- "It is found that the specimen signatures are executed cautiously. However the questioned Urdu signatures on documents Ex P1, Ex P2, Ex P3 bear different style/structure, connections, starting and ending strokes". Such witness was cross-examined by the plaintiff, but nothing favourable could have been brought on record.

11. The plaintiff has failed to successfully prove his case, and onus of the issues, which was placed on the plaintiff, was not discharged in a proper manner.

12. When the plaintiff has placed his reliance on the agreement, receipt and pronote, and insisted upon consideration of all the documents with regard to his claim for the return of Rs.20,00,000/- (rupees twenty lac only), the jurisdiction within the meaning of Order XXXVII, C.P.C. was then not available to such plaintiff, for the reason that, neither the agreement Exh.P.1 nor receipt Exh.P.3, at any cost, could have been considered as negotiable instrument. The plaintiff, if had any claim on the basis of such documents, could have brought a civil suit before a court of general jurisdiction. The summary procedure provided for the cases on the basis of negotiable instrument was, thus, not available to the plaintiff.

13. The impugned judgment and decree, passed by the learned trial court on 27.05.2008 is, thus, a nullity in the eye of law, and the Additional District Judge, was having no jurisdiction to entertain the plaint, filed on the basis of documents, which by no stretch of imagination, can be considered as negotiable instruments.

14. Legally and factually, the plaintiff has failed to establish his claim and, thus, the impugned judgment and decree dated 27.05.2008 is not sustainable in the eye of law.

15. Resultantly, this appeal is allowed and the impugned judgment and decree dated 27.05.2008, is set aside, and the suit filed by the respondent stands dismissed. ZC/M-140/L Appeal allowed.