1997 PLP 2835 (MLD)

5. The learned trial Court after considering the evidence came to the conclusion that the burden to prove the existence of the agreement was on the plaintiff who was unable to discharge the same. It was held that neither of the two witnesses to be examined nor the Notary Public were examined and the Court was justified in assuming that such evidence could have gone against the plaintiff. Some discrepancies in the testimonies of the plaintiff and his witness Muhammad Uris were also pointed out. A great deal of emphasis was placed on the affidavit of Allah Bux, the, scriber who repudiated the plaintiff's case. Eventually it came to the conclusion that plaitniff had failed to prove his case and consequently dismissed the suit.

6. The First Appellate Court on the other hand upon re‑appraisal of the evidence. took the view that the affidavit of Allah Bux could not be taken into consideration as admittedly the deponent had not been subjected to cross-examination. With respect to the alleged contradictions/discrepancies in the plaintiff's evidence it was held that they were two minor and needed to be over?looked. It was also observed that no evidence in rebuttal was led by the defendant.

7. Mr. Rahmat Ali Rajput learned counsel for the petitioner raised the following contentions: (a) The Appellate Court misappreciated the evidence on record in failing to give weight to material contradictions in the respondents' evidence. He stressed that:‑‑ (i) Respondents had said that payment of Rs.13,400 was made through Petition Writer Allah Bux whereas his witness Muhammad Uris stated that it was made directly; (ii) that while the respondents contended Stamp Paper was purchased a day prior to the signing of the agreement while Muhammad Uris stated that it was purchased on the same day i.e. 30‑11‑1983. ?? ? (b) That in his cross‑examination the respondent had said that agreement was made 5‑6 years after an earlier admitted transaction between the same parties and thereby had admitted the prosecution case that the document has been drawn up in 1986 and not in 1983. This according to him was clear admission on the part of the respondent as to petitioner's case but was plainly ignored from consideration by the Appellate Court which amounted to misreading of evidence. (c) That affidavit of Allah Bux had not been rebutted and contents thereof ought to have been considered by the Appellate Court. As such there is clear misreading of evidence. (d) That the burden of proof to the existence of the agreement was clearly on the respondents and the First Appellate Court went wrong in law in upholding the respondents' plea on the ground that there was no evidence in rebuttal from the applicant's side. (e) That the respondent was required to lead the best available evidence and his failure to produce the witnesses to the agreement or the Notary Public ought to have led to an adverse inference against them.

8. With respect to the first contention I must observe at the outset that this Court has very limited jurisdiction under section 115, C.P.C. and a re‑appraisal of evidence cannot be undertaken these proceedings. Having gone through the evidence and the findings of the First Appellate Court I am of the considered opinion that there is nothing to indicate that such findings are perverse or cannot be sustained on the basis of the evidence on record. Even I am inclined to draw different conclusions, I am not entitled to disturb the findings of the facts. The mere fact that the findings of facts by the Court below are not concurrent, does not enlarge the scope of interference in revisional jurisdiction. In this context Mr. Abdul Hameed Khan, learned counsel for the respondent, has placed reliance on a judgment of the Honourable Supreme Court in the case of Abdul Rehman Wahla v. Dr. Sher Dil Batra (PLD 1986 SC 234) where Muhammad Afzal Zullah, J. (as his Lordship then was) held as under:‑‑

"The mere fact that the learned Judge in the High Court differed with the trial Court with regard to the appreciation of the material before the trial Court namely, the report and verification on oath of the process‑server could not justify interference in revisional jurisdiction. "

9. Even otherwise reading the depositions of witnesses as a whole I agree with the observations of the First Appellate Court that the contradictions are too insignificant to be given any serious weight particularly when evidence were being recorded several years after the transaction. As to the contention that the Appellate Court misread the evidence by failing to consider one sentence in the deposition of the respondent", It is a fact that this agreement is of after 5/6 years of Exh. 157". Mr. Rajput may be technically correct in asserting that while the trial Court related it as an admission in the applicant's favour, the Appellate Court omitted it from consideration altogether. Nevertheless in the same cross-examination the respondent has asserted in unmistakable term that the agreement was executed on 30‑11‑1983 and no serious weight can be attached of this statement muchless treating it as an admission.

10. With regard to the affidavit of Allah Bux it is settled law that the statement in affidavit cannot be treated as substantive evidence or acted upon unless the other party has had an opportunity to cross‑examine the deponent except its interlocutory proceedings and as such the trial Court was plainly wrong in taking such statements into consideration. Mr. Rajput has next contended with great deal of emphasis that even if the agreement did not require attestation in terms of Article 79 of the Qanun‑e‑Shahadat, the respondents were under legal duty to prove its existence by producing the best available evidence in terms of Article 78 of the Order and in the even of his failure to do so the Court would require to draw adverse inferences. He contended that by failing to produce the witnesses to the agreement the respondent failed to discharge his burden. He has relied upon a judgment of the Lahore High Court in the case of Manzoor Hussain Khan v. Aasia Begum and 21 others (1990 CLC 1014). In this case the existence of an agreement was denied by the defendant but the plaintiff apart from appearing in Court proceedings neither produced the stamp vendor nor the marginal witnesses to the agreement. It was observed by Gul Zarin Kiani, J. that: "Therefore, his solitary statement in absence of something also was clearly insufficient to prove genuine execution of the agreement to sell. True, agreement to sell was not required to be attested by witnesses and in this view, provisions in Article 79 of the Qanoon‑e‑Shahadat need not have applied. Nevertheless, a document does not prove itself. In case of its denial party lying upon it must prove its execution in accordance with the Qanun‑e‑Shahadat shall apply which provide that if a document is alleged to be signed or to have been written by any person, signature or writing must be proved to be in that person's hand?writing. The Article by itself does not lay down any particular mode for proving the signature or the writing. It merely requires the signature or writing to be proved to be in the hand of the person to whom it purportedly belonged. Any mode of proof recognized by law may suffice. However, a litigant is required to observe the rule of best evidence and if the best evidence is available and withheld from the Court, then, it may attract legitimate adverse comments against the proof offered. "

11. Mr. Rajput has also placed reliance on a Division Bench Judgment of this Court in the case of Muhammad Nawaz v. Jiand Rai (1981 CLC 867) where Naimuddin, J. (as his lordship then was) observed that:-- "It is true that the agreement was one of those documents which require to be proved by any attesting witnesses but when the question was, when the document was executed, it was necessary for the appellant to have examined the Stamp Vendor, the scribe, the executant or the attesting witnesses or some of them in corroboration of his evidence particularly, when the attending circumstances were such that they tended to affect the veracity of his evidence. "

12. Mr. Abdul Hameed Khan, learned counsel for the respondents, however, submitted that case was distinguishable inasmuch as at least one witness to the agreement Muhammad Uris was in fact produced: Sufficient explanation had also been furnished in respect of the others to the effect that they had been won over by the defendants and were not willing to depose. Moreover, he has also drawn my attention to the judgment of the Honourable Supreme Court in the case of Dil Murad v. Akbar Shah (1986 SCMR 306) where Zafar Hussain Mirza was pleased to observe as follows:-- "Execution can be proved by calling the person who signed or wrote the document or a person in whose presence the document was signed or written by calling a handwriting expert who has examined the disputed signature with the admitted signature. Additionally execution can be proved by calling a person acquainted with the handwriting of the person who has signed or written it. Lastly the Court can compare the disputed signature or writing with some admitted signature or writing. Even circumstantial evidence can be adduced in proof of the execution of a document. We agree with the learned Judge in the High Court that the respondent had produced sufficient legal evidence in proof of the execution of the agreement in this case and that a bare denial on the part of the respondent was not sufficient to set at naught the evidence thus produced." ???????????

13. In view of the above it may be possible to say that perhaps between evidence could have been produced in support or denial of the agreement but it is not possible to subscribe to the view that the entire burden was on the respondent as contended by Mr. Rajput. He may be right to the extent that normally ascertaining a particular fact as to prove its case in respect of relying on the weakness of adversary case but an essential distinction between civil and criminal proceedings, the burden of proof is invariably on the prosecution, Civil disputes are to be resolved on balance of probabilities and the question of initial onus of proof is relevant only when no evidence is led. However, where both parties have led evidence, the question of onus becomes insignificant and the Court must decide on the basis of which version appears more probable. In this context one may refer to the judgment of the Hon'ble Supreme Court in the case 1 of Zakaullah Khan v. Muhammad Aslam (1991 SCMR 2126). In para. 10 of the Judgment Shafiur Rehman, J. held, "On the second question there is abundant authority that where evidence led by both the parties, the question of onus of proof is immaterial. It becomes important where no evidence is led or evidence on both the sides are evenly balanced in Court", The same view appears to have been taken by Ajmal Mian, J. (when his Lordship was Judge of this Court) in the case of Dhani Bux v. Mahmoodunisa (PLD 1981 Karachi 650). In view of the aforesaid, I find no reason for interfering with the decision of the First Appellate Court, as such this application is dismissed with no order as to costs. I must record my gratitude to learned counsel for both the parties for available assistance. A.A./A‑116/K ??????????????????????????????????????????????????????????????????????????????????? Revision dismissed.