2022 PLP 1734 (MLD)

CH. MUHAMMAD MASOOD JAHANGIR, J.

Verily, Mumtaz Ahmad Minhas, respondent No.1 was exclusive owner of the subject property, who transferred it to Amir Abbas Minhas, respondent No.2 vide sale deed dated 24.06.2005. Thereafter, on 06.07.2005 the petitioner/plaintiff instituted suit for specific performance of contract dated 18.05.2005 (Exh.P1), against respondents before learned Civil Court, Chakwal while asserting that respondent No.1 had sold out subject property to him after receiving advance consideration before the witnesses, but instead of performing his part of contract, respondent No.1 to frustrate Exh.P1 alienated suit property to respondent No.2, thus prayed for grant of decree for specific performance and cancellation of sale deed executed in favour of respondent No.2. In response, suit was contested by the respondents with the plea that neither alleged sale was ever offered nor consideration received; that petitioner/plaintiff had succeeded to obtain signature of respondent No.1 over blank stamp paper so that electric connection could be installed over the suit house and that said blank stamp paper was used to manipulate sale contract, which being forged, fictitious and result of fraud was inoperative upon rights of the respondents. Facing with divergent pleadings, the parties were put to face trial, who examined evidence in pros and cons and as a result of its appreciation, though suit was decreed by learned Trial Court via judgment dated 25.04.2011, yet learned Appellate Court below through impugned decision of 27.03.2014 reversed the said verdict of its subordinate and dismissed the suit. It caused the petitioner to approach this Court via cited petition, which since 2014 is here.

2. Messrs Muhammad Taqqi Hasnain and Muhammad Tariq, Advocates for the petitioner as well as Barrister Osama Amin Qazi, Advocate for the respondents argued the case and available record consulted with their able assistance.

3. There is no cavil that agreement to sell cannot be treated as deed of title, which in case of denial, being document of financial obligation and future liability is required to be proved in terms of Article 79 of Qanun-e-Shahadat Order, 1984. Per contents of written statement, respondents explicitly disputed the very origin of Exh.P1 while raising serious allegations in the sense that it was forged, fabricated and fictitious document, besides that maneuvered by practicing fraud, thus heavy onus rested upon beneficiary/petitioner to establish its genuineness. The perusal of sale agreement (copy whereof is available at page 73) revealed that Ghulam Sajjad and Sajjad Haider had witnessed it, but surprisingly only former (PW3) was examined, whereas latter despite availability was withheld, thus per compulsory requirement of relevant provision, the document remained unproved. In 'Mst. Rasheeda Begum and others v. Muhammad Yousaf and others' (2002 SCMR 1089), 'Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others' (PLD 2011 SC 241) and 'Farid Bakhsh v. Jind Wadda and others' (2015 SCMR 1044), while defining Article 79 in depth, the apex Court finally observed that its requirement is mandatory and without strict compliance thereof any such document (entailing future obligation or financial liability) cannot be used as evidence. For ready reference, para No.8 of Hafiz Tassaduq Hussain's case (supra) being applicable with all four corners to the case in hand is given below:- "The command of the Article 79 is vividly discernible which elucidates that in order to prove an instrument which by law is required to be attested, it has to be proved by two attesting witnesses, if they are alive and otherwise are not incapacitated and are subject to the process of the Court and capable of giving evidence. The powerful expression 'shall not be used as evidence' until the requisite number of attesting witness have been examined to prove its execution is couched in the negative, which depicts the clear and unquestionable intention of the legislature, barring and placing a complete prohibition for using in evidence any such document, which is either not attested as mandated by the law and/or if the required number of attesting witnesses are not produced to prove it. As the consequence of the failure in this behalf are provided by the Article itself, therefore, it is a mandatory provision of law and should be given due effect by the Courts in letter and spirit. The provisions of this Article are most uncompromising, so long as there is an attesting witness alive capable of giving evidence and subject to the process of the Court, no document which is required by law to be attested can be used in evidence until such witness has been called, the omission to call the requisite number of attesting witnesses is fatal to the admissibility of the document. See Sheikh Karimullah v. Gudar Koeri and others (AIR 1925 Alahabad 56). The purpose and object of the attestation of a document by a certain number of witnesses and its proof through them is also meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and for this the legislature in its wisdom has established a class of documents which are specified, inter alia, in Article 17 of the Order, 1984. (See Ram Samujh Singh v. Mst. Mainathy Kuer and others (AIR 1925 Oudh 737). The resume of the above discussion leads us to an irresistible conclusion that for the validity of the instruments falling within Article 17 the attestation as required therein is absolute and imperative. And for the purpose of proof of such a document, the attesting witnesses have to be compulsorily examined as per the requirement of Article 79, otherwise, it shall not be considered and taken as proved and used in evidence. This is in line with the principle that where the law requires an act to be done in a particular manner, it has to be done in that way and not otherwise." This aspect with some more clarity that nothing short of two attesting witnesses can even be imagined for proving sale contract, besides that testimony of scribe cannot be used to consider it as statement of marginal witness has also been substantiated by the same Court in Farid Bakhsh's case (supra) by concluding that:- '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.'

4. In addition to said drastic aspect, per available evidence despite that the Deed Writer (DW1) made his statement without having his relevant Register before him, yet explicitly conceded that:- In such situation when he neither signed Exh.P1 as attesting witness nor alleged transaction finalized before him, therefore in line of afore reproduced decision of the apex Court, his evidence lacked any importance. The next draw back was that sole marginal witness, Ghulam Sajjad (PW3) was not only real brother of the petitioner/plaintiff, rather he did not utter a single word that either purported deal was settled or token amount was paid in his presence. No more supporting witness appeared on behalf of the petitioner, thus the available evidence was meagre, insufficient and inconsistent besides that not up to the demand of law, thus was rightly disbelieved by the Court below.

5. The submission of learned counsel for the petitioner/plaintiff that respondent/defendant No.1 admitted his signatures over sale contract (Exh.P1), thus in such situation his client was not under obligation to formally prove the said document is misconceived. As observed supra to this extent stance of respondent/defendant No.1 was that blank stamp paper was got signed by the petitioner/plaintiff for installation of power connection, but subsequently it was fabricated as sale agreement through forgery. It is well settled by now that execution of document would not only mean mere signing or putting thumb impression, but must be proved that same was so made in presence of witnesses before whom the document was written, read over and understood by the executant. It would also not only be limited to merely signing a name or affixing thumb impression upon a blank sheet of paper so as to prove the document to have been executed by the executant, whose identification should be proved by reliable and authentic evidence as well. The execution means series of acts, which would complete the same and mere signing or putting thumb mark would not amount to prove due construction of the document. There is no cavil that an unproved document is not admissible in evidence unless strict proof thereof is waived. Reliance to this effect is placed on 'Abdul Hameed v. Mst. Aisha Bibi and another' (2007 SCMR 1808), wherein it was observed as under:- "After hearing the learned counsel for the parties and perused the record with their assistance, we find that sole question requiring determination would be whether the admission of vendor of his thumb-impression on the agreement to sell was sufficient to prove its execution and contents, the answer is in the negative as the document purporting to create a right in the property must be proved to have been actually executed by the person who allegedly executed such document." The apex Court further held that:- "In view thereof, the admission of Din Muhammad of his thumb-impression on the agreement in question, would not ipso facto prove its contents to raise the presumption of it being a genuine document to have the legal force." It is to be kept in mind that exhibition of document as well as its proof are two different aspects and obviously the latter one is more significant. In the case in hand, although the requisite document was tendered in evidence, but was not proved per stern compliance of law, thus he had to suffer.

6. For the foregoing reasons, it can safely be concluded that learned Appellate Court below has elaborately discussed all factual and legal aspects of the matter in recording valid, cogent as well as convincing reasons to culminate the same, whereas learned counsel for the petitioner failed to persuade to take a view different from the one taken by learned Additional District Judge, whose verdict per decisions of the Superior Courts passed in cases reported as "Amjad Ikram v. Mst. Asiya Kausar and 2 others" (2015 SCMR 1), "Muhammad Yasin through L.Rs and others v. Muhammad Latif and others" (2016 CLC 553) and "Mst. Azra Gulzar v. Muhammad Farooq and another" (2018 CLC 1056) deserved preference over that of Civil Court. Thus, instant case does not fall within any of the exceptions to invoke revisional jurisdiction provided under section 115, C.P.C. This petition having no merit is dismissed with no order as to cost. MHS/Q-9/L Revision dismissed.