2006 PLP 823 (MLD)

SYED JAMSHED ALI, J.

This revision petition is directed against concurrent judgments of the learned two Courts whereby suit for recovery of an amount of Rs.25,000 filed by the respondent against the petitioner, Shah Muhammad, deceased, now represented by his L.Rs. has been decreed. The facts are briefly noted hereunder.

2. According to the case of the plaintiff-respondent, a sum of Rs.33,500 was advanced as loan to the deceased-petitioner, under a written agreement dated 30-1-1990 (Exh.P.), in connection with business. He, however, re-paid a sum of Rs.5,500 leaving a balance of Rs.25,000.

3. The suit was contested by the deceased-petitioner. His defence was that he was made to thumb-mark a blank paper in the Police Station. Necessary issues were framed and the parties led evidence in support of their respective pleas. Vide judgment and decree dated 28-1-1992, the suit filed by the respondent was decreed. The deceased-petitioner filed an appeal which was dismissed on 7-9-1995. While decreeing the suit of the respondent, the learned two Courts relied on Exh.P.1 sought to be proved by the testimony of P.W.1, Muhammad Ramzan, one of the marginal witnesses, of the aforesaid agreement.

4. The respondent is represented by a learned counsel whose name has correctly been printed in the cause list but he is not in attendance. It is an old case, therefore, I proceeded to hear the learned counsel for the petitioner.

5. The learned counsel for the petitioners contends that in accordance with the requirement of Articles 17 and 79 of the Qanun-e-Shahadat 1984, both the marginal witnesses were required to be produced and in the absence of any explanation for non-examination of the other marginal witnesses, the agreement Exh.P.1, did not stand duly proved. Reliance was placed on Mian Iqbal Mahmood Banday v. Muhammad Sadiq (PLD 1995 SC 351) and Abdul Khaliq v. Muhammad Asghar Khan and 2 others (PLD 1996 Lahore 367). Another grievance is that the deceased-petitioners had specifically raised a plea that the disputed agreement was the outcome of coercion but no issue on this material point of controversy was framed.

6. The submissions made by the learned counsel for the petitioner have been considered. According to Article 17 of the Qanun-e-Shahadat Order, a document pertaining to financial or future obligation, if reduced into writing is to be attested by two men or one man and two women and evidence shall be led accordingly. (Underlined for emphasis). Article 79 A of the Qanun-e-Shahadat, order provides that if a document is required to be attested, it shall not be used in evidence until two attested witnesses are called for the purpose of proving its execution, if there are two attesting witnesses alive. There is no explanation whatsoever on the record as to why the other marginal witness of the agreement was not examined. The provisions of Article 79 are mandatory and non-compliance thereof rendered Exh.P.1, as inadmissible in evidence. The learned two Courts assumed execution of Exh.P.1., on the basis that the deceased-petitioner had admitted having thumb-marked the said c document. They lost sight of the fact that mere thumb-marking or signing a document is not its due execution unless the executant signs or thumb-marks a document after understanding its contents. Excluding Exh.P.1 from consideration, there remains only word of the plaintiff against word of the defendant and the onus of proof being on the plaintiff, he must fail.

7. Accordingly, this revision petition is allowed. The impugned judgments and decrees of the learned two Courts are set aside and the suit filed by the respondent is dismissed. Since nobody is in attendance to contest this petition on behalf of the respondent, there is no order as to costs. S.A.K./S-441/L?????????????????????????????????????????????????????????????????????????????????? Revision allowed.