2020 PLP 1312 (MLD)

CH. MUHAMMAD MASOOD JAHANGIR, J.

Admittedly, Rana Muhammad Aslam Khan, petitioner was exclusive owner of subject land, who vide mutation No.6298 dated 05th March, 2002 transferred it to his son Rana Abdul Qayyum, respondent No.2. Thereafter, on 4th April, 2002 Shah Nawaz, respondent No.1 filed suit for specific performance of contract contending therein that despite the subject property was mortgaged, it was purchased by him on 14th January, 1993 vide contract and receipt (Exs: P1 and 2) respectively against Rs.2,00,000/-, out of which Rs.1,64,000/- were paid before the witnesses, but after its redemption to frustrate the agreement, property was dishonestly transferred by petitioner in favour of his son. The petitioner and his son not only by filing their written statement denied the settlement of transaction as well as execution of Exs: P1 and 2 with the firm stance that plaintiff was their tenant, who managed aforenoted forged and fictitious documents, but independent suit was also instituted by the petitioner for cancellation of these documents. As a result of a conjunctive trial, the suit of respondent No.1 was decreed and that of the petitioner was dismissed vide consolidated judgment of 9th May, 2006. Although two independent appeals were preferred, but those were dismissed on 2nd October, 2009 and to call in question the vires of concurrent decrees of learned lower fora, this Civil Revision was preferred.

2. Arguments heard. Record perused.

3. Before adverting to the facts of the case, I must add that an agreement to sell of immovable property is a contract enforceable by law, but section 54 of the Transfer of Property Act, 1882 expressly provides that it does not itself generate interest, right or title in such property, and as a matter of law to constitute ownership thereof, another instrument in its pursuance is required. Admittedly, when impugned contract was purportedly scribed, there was no requirement for its registration, but now through recent amendment introduced in Section 17 of the Registration Act, 1908, it is mandatory that such type of document should be registered, anyhow, for its construction, it being a document of financial liability and future obligation under the provision of the Qanun-e-Shahadat Order, 1984, was required to be attested by two male or one male and two female witnesses, as the case may be. For better appreciation, Sub-Article (2) of Article 17 of the Order ibid is reproduced here:- In matters pertaining to financial or future obligations, if reduced to writing, the instrument, shall be attested by two men, or one man and two women, so that one may remind the other, if necessary and evidence shall be led accordingly. 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. The execution of agreement can be proved, only in accordance with mode provided under Article 79 of the Order ibid, which reads as under:- Proof of execution of document required by law to be attested. 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. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provision of the Registration Act, 1908, (XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied. The apex Court in a recent case reported as Farid Bakhsh v. Jind Wadda and others (2015 SCMR 1044) has elaborately defined Article 79 and finally concluded that its requirement was mandatory and without its strict compliance, such a document cannot be used as evidence. The relevant conclusion for ready reference is given below:-- This Article in clear and unambiguous words provides that a document required to be attested shall not be used as evidence unless two attesting witnesses at least have been called for the purpose of proving its execution. The words shall not be used as evidence unmistakably show that such document shall be proved in such and no other manner. The words two attesting witnesses at least further show that calling two attesting witnesses for the purpose of proving its execution is a bare minimum. Nothing short of two attesting witnesses if alive and capable of giving evidence can even be imagined for proving its execution. Construing the requirement of the Article as being procedural rather than substantive and equating the testimony of a Scribe with that of an attesting witness would not only defeat the letter and spirit of the Article but reduce the whole exercise of re-enacting it to a farce. We, thus, have no doubt in our mind that this Article being mandatory has to be construed and complied with as such. As such after the promulgation of Order, 1984, a document of alike character has to be executed and proved as per scheme provided in the afore-referred Articles. D

4. Now reverting back to the facts of the case, the impugned documents i.e, contract (Ex:P1) and receipt (Ex:P2), as per requirement of law, although were signed by Gul Hassan and Ghulam Shabbir Khan being its marginal witnesses, which could only be proved if they were examined. Admittedly, Ghulam Shabbir Khan (PW4), out of them was produced, whereas other one was not brought into the witness-box by the beneficiary/respondent No.1 and on having been faced with the said situation, his learned counsel submitted that the said witness had already departed. The learned counsel, however, conceded that neither in contents of plaint the fact of his alleged death was exposed nor any document was brought on record to affirm said plea. Mere oral statement was not enough to prove his non-availability. Anyhow, in such a situation, there were two modes available to the plaintiffs; firstly that a person familiar with the signatures of Gul Hassan was to be examined to comply with the requirement of Article 80 of the Order, 1984 and secondly the plaintiff might have applied to the learned Trial Court for referring the disputed documents (Ex:P1 & 2) to the Handwriting Expert for the comparison of the alleged signatures affixed over there with some admitted one of the purported executant. Although, report of such an Expert is not conclusive proof, but in absence of one of the marginal witnesses, when requirement of Article 80 of the Order, 1984 was also not complied with, this mode was to be followed. See Hamid Qayum and others v. Muhammad Azeem through L.Rs and another (PLD 1995 Supreme Court 381), wherein it was held that the report of Expert is one of the modes of proving the document and if the said report is properly exhibited, the same can be used as corroborative piece of evidence. By not resorting to this exercise at any stage, the plaintiff incurred an adverse presumption against him. D

5. The emphasis of learned counsel for plaintiff/respondent No.1 that Muhammad Asghar (PW2) scribe of Exs.P1 and 2 was examined, therefore, any lapse on the part of his client stood cured/covered is not tenable. Admittedly, the documents were not signed by PW2 being marginal witness, who in his statement-in-chief did not depose that bargain was struck in his presence, rather during cross-examination he explicitly admitted that consideration was not paid before him. It is settled by now that a Scribe or anybody else, who did not put his signatures being marginal witness on documents required to be attested, cannot be considered as such. See Muhammad Sarwar v. Salamat Ali (2012 CLC 2094), Hafiz Tassaduq Hussain v. Muhammad Din through L.Rs and others (PLD 2011 SC 241) and Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187). The relevant extract from Para- 9 of Hafiz Tasadduq s case for ready reference is reproduced below:-

9. Coming to the proposition canvassed by the counsel for the appellant that a scribe of the document can be a substitute for 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.

6. Having gone through the evidence of the plaintiff available on record, it was picked that plaintiff (PW3) in his cross examination disclosed that advance sale consideration was paid one day prior to execution of referred documents (Ex:P1 & 2) and the exact words uttered by him in this regard are given below:- Whereas, the marginal witness (PW4), antipodal to plaintiff stated that sale price was paid in Court premises and relevant extract of his cross-examination in verbatim is reproduced hereunder:- The glaring contradiction with regard to venue of the payment was not ignorable, but Courts below failed to consider that neither the present evidence was cogent, reliable nor that the vital documents having been executed after promulgation of Order 1984, ibid, were proved as per prescribed scheme provided in the afore-referred provisions of the Order, 1984 ibid.

7. Now adverting towards the last contention of learned counsel for the plaintiff/respondent No.1 that this Court cannot set aside the concurrent judgments of the lower Courts in exercise of powers under section 115 of the Code, 1908. Although the scope of interference with concurrent findings of fact is limited, but such findings can be interfered with by this Court under Section 115 C.P.C, if Courts below appeared to have either misread evidence on record or while assessing evidence had omitted from consideration some important piece of evidence, which had direct bearing on the issue involved. In arriving at such view, this Court is fortified by the dictum laid down in the judgment reported as Abdul Hakeem v. Habibullah and 11 others (1997 SCMR 1139) and the relevant portion thereof is reproduced as under:-

6. Before considering the contentions of the parties on merit, we would like to mention here that the scope of interference with concurrent finding of fact by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C is very limited. The High Court while examining the legality of the judgment and decree in exercise of its power under section 115, C.P.C cannot upset a finding of fact, however erroneous it may be, on reappraisal of evidence and taking a different view of the evidence. Such findings of facts can only be interfered with by the High Court under section 115, C.P.C if the Courts below have either misread the evidence on record or while assessing or evaluating the evidence have omitted from consideration some important piece of evidence which has direct bearing on the issues involved in the case. The findings of facts will also be open to interference by the High Court under section 115, C.P.C if the approach of the Courts below to the evidence is perverse meaning thereby that no reasonable person would reach the conclusions arrived at by the Courts below on the basis of the evidence on record.*** This view has again been reaffirmed by the same Court in the judgments reported as Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 SC 255), Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others (2014 SCMR 914) and Nazim-ud- and others v. Sheikh Zia-ul-Qamar and others (2016 SCMR 24) to confirm that no Court in the country has the jurisdiction to decide about the rights of the parties wrongly and in violation of law and the Revisional Court has no exception to this rule. It has also been held therein that Court could not pass an order of its liking, solely on the basis of its vision and wisdom, rather it is bound and obligated to render decisions in accordance with law and the law alone, hence this Court can invoke its jurisdiction in the cases where interference is warranted.

8. The narrative of the above discussion is that this Civil Revision succeeds, the decrees of learned lower fora are hereby set aside and suit of respondent No.1 is also dismissed with no order as to costs. ZC/M-114/L Revision allowed.