2002 PLP 2660 (YLR)

12. In reply to the above arguments, the learned counsel for the petitioner contends that the total picture which has emerged from reading of the evidence would show and prove on the record that the agreement to sell Exh.P.1 dated 5‑2‑1987 was forged and fictitious and there was no rebuttal to issue No.3. There is complete conflict of opinion regarding the proof of the agreement to sell Exh.P.1 in the judgments of the two Courts below. The learned civil Judge has not accepted the document Exh.P.1 as genuine.

13. The foremost and pivotal question raised in this case is whether document Exh.PA the agreement to sell dated 5‑2‑1987 between the parties is a genuine or forged document and has been proved in accordance with law or not. This document, it may be stated, was the main subject of controversy between the parties. To resolve this controversy the provisions of Article 78 and 79 of the Qanun‑e‑Shahadat Order 1984, are reproduced:‑ "

78. Proof of signature and handwriting of person alleged to have signed or written document produced.‑‑‑If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.

79. 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 purposes of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence." Admittedly agreement Exh. P. 1 was not a copy of public record or per se admissible. It had to be proved in accordance with the provisions of Article 79 of the Order. The onus of proof was on the plaintiff Taj Din. Scribe Muhammad Shafique P.W.2, and marginal witnesses have neither referred nor identified the thumb‑impressions of defendants Nos.1 to 3, which were endorsed on the agreement Exh.P.1 nor the same were confronted to defendants Nos. 1 to 3 when they appeared in the witness‑box. It is strange that on the first day when Taj Din plaintiff appeared as P. W.1, the document was marked as Exh.P.1 in violation of Order XIII, rule 4 of the C.P.C. (V of 1908) in the statement of Taj Din plaintiff without examining the scribe or the marginal witnesses. When defendants Khushi Muhammad, Mst. Ramzan Bibi and Mst. Jamila Bibi appeared as D. W.1 to .D. W.3, they denied their thumb‑impressions on Exh.P.1. The controversy regarding proof of document and interpretation of sections 67 and 145 of the Old Evidence Act, which is synonymous with Articles 68 and 69 of Qanun‑e -Shahadat Order, and cases of Gopal Das v. Sri Thakarji (AIR 1943 P.C 43), Abdullah and 3 others v: Abdul Karim and others (PLD 1968 SC 140) and Malik Din v. Muhammad Aslam and others) PLD 1969 SC 136) came for consideration before the Honourable Supreme Court of Pakistan in case reported as Khan Muhammad Yousaf Khatak v. S.M. Ayub and 2 others (PLD 1973 SC 160) in an election matter. Regarding the proof of documents without objection the Honourable Chief Justice Mr. Justice Hamuddur Rehman, as my Lord then was, while relying on the above- referred case law, held:‑ "To the same effect are the observations of this Court in case of Abdullah v. Abdul Karim and Malik Din v. Muhammad Aslam. In the present case I cannot keep feeling that the appellant had abundant notice and this particular document would, be used against him, but in, spite of it he negligently did not either deny admission without formal proof. In the circumstances, the Tribunal, in my view cannot be said to have acted contrary to the law in relying on the document and holding that the appellant did, in fact, continue to act as Director up to 31st December, 1970. " The majority view was recorded by my Lords Mr. Justice Sajjad Ahmad Jan and Mr. Justice S. Anwarul‑Haq, as my Lords then were, His Lordship Mr. Justice Sajjad Ahmad Jan held:‑ "I am of the view that even such documents are brought on record and exhibited without objection, they remain on the record as exhibits and truthful copies of the contents of the original but they cannot be treated as evidence of the original having been signed and written by the persons who purported to have written or signed them, unless the writing or signature of that person is proved in terms of mandatory provisions of section 67 of the Evidence Act." His Lordship further observed:‑ "However, even I were to assume without holding that the document is genuine and it bears the signature of the appellant, I am of the firm opinion that it can be used against him as evidence as he was not confronted with it and it was not afforded an opportunity to explain it as required by section 145 of the Evidence Act." His Lordship Mr. Justice Anwar ul‑Haq while agreeing with the above observation, held:‑ "While it is true as observed by Privy Council in Gopal Das v. Sri Thakarji and by this Court in Abdullah v. Abdul Karim and Malik Din v. Muhammad Aslam that an objection has to be made of proof should be taken at the trial before the document is marked as Exhibit and exhibited to the record and party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. It will be seen that in this case an objection as to the admissibility and the proof of this document was taken before the Election Tribunal itself. A cursory glance at the original of this document, which was summoned by this Court, shows that there is an overwriting on the signature of the appellant, it is recorded by the election Tribunal that the original, as produced by the Registrar Assistant was seen and returned. I cannot help feeling that Tribunal clearly failed to perform its duty if it did not see overwriting on the Exh.E. Even in the attested copy obtained by the respondent, there appears a note to the following effect:‑‑ "Attested to be true copy" However, signatures of Muhammad Yousaf Khatak appear to be over written. In these circumstances, it was obviously necessary for the Election Tribunal to have the signature and the handwriting of the appellant proved in accordance r6th mandatory provisions of section 67 of the Evidence Act, but this was not done. The onus of proving this document lie on the respondent and the fact that the appellant or his counsel did not take any specific objection at the time of production of this document does not mean that the same stands proved, in view of the patent over‑writing existing in the original and noted in the attested copy." It is admitted position of law that admittance of document under Order XIII rule 4, C.P.C. is not binding on the parties and unproved documents cannot regarded as proved merely because they ; so admitted by the Court (In case H Singh v. Firm Karam Chand (AIR 19 Lah. 15) this Court interpreted the provision of Order XIII rule 4 and held that rule must be strictly complied with as follows: "The provisions of Order 13, Rule 4 must be strictly complied with. The endorsement should bear the name of the person tendering the document in evidence and the date on which it was so tendered. Merely by stamping documents with the date on which they were filed in Court, they do not ipso facto become evidence in the case without any formal proof." Since the decisions of the two Courts below on disputed question of fact are controversial, therefore, seeking guidance from the case reported in 2001 SCMR 1493 I myself have read the evidence on the record and drawn the following conclusions:‑ (i) That the agreement Exh.P.1 is a doubtful document. The reasons are:‑ (a) The petition‑writer Muhammad Shafique was not resident of village Ganishpur where the land in dispute is situated and agreement to sell has been executed between the parties in spite of the fact that petition‑writers were available at Mandi Faizabad and Nankana Sahib which are nearer to their residence; (b) It is admitted position that Muhammad Shafique is not a licensed petition‑writer. He has admitted that he did not have any licence issued by any authority; (c) Muhammad Shafique, petition writer, has contradicted himself regarding maintenance of register; (d) the petition‑writer has also taken contradictory stand regarding entry of the serial number in the register; (e) Regarding thumb‑impression affixed on the agreement having different ink‑mark he contradicted himself that the thumb‑impressions were with the same ink. ii) As far as P. Ws.3 and 4 namely Saleem Javed and Muhammad Tahir are concerned:‑ (a) they came alongwith Taj Din from Arifwala to Ganaishpur; (b) They were known to the petition- writer and Muhammad Saleem was his class‑fellow. The witness Saleem Javed, P.W.3, has close relationship with plaintiff Taj Din. iii) Taj Din never moved an application before the Civil Judge to send the disputed thumb -impressions of Khushi Muhammad and his sisters for examination to the Expert. iv) The alleged agreement was referred for Expert opinion on the application moved by the defendant. The thumb‑impressions on the agreement Exh. P.1 were never confronted to the witnesses. The other mode of proof of the document Exh.P.1 was sending it to the Finger Print Expert, which exercise was not made by the plaintiff. Regarding the proof of document through other mode, i.e. sending it for comparison to the Finger Print Expert, the case relied upon by the learned counsel for the respondent, i.e. case of Ch. Abdul Hamid (1985 SCMR 359), I may say, is not helpful to the respondent because it was an election matter. The Election Authority remanded the case regarding the disputed nomination for the decision of the Deputy Commissioner and the Authority did not examine the parties concerned or their witnesses nor framed an independent opinion of its own about the documents before it on which the Expert‑opinion had been obtained. In the above‑circumstances, the Honourable Supreme Court observed that the inquiry made by the Appellate Authority and the conclusions reached were legally defective in more than one respect and it was held:‑ "The evidence of the Handwriting Expert is neither the only nor the best method of proving the handwriting or signatures of a person. It is at best an opinion." In this view of the matter, I hold that document Exh.P.1, the agreement to sell was not proved under the Qanun‑e -Shahadat Order, 1984 and, therefore, it could have not been read in evidence. Therefore, the finding of the learned Civil, Judge on issues Nos. 1 and 2 was based on correct reading of, the statements of the witnesses and appreciating the evidence on the record. Now I deal with the judgment of the learned Additional District Judge through which the findings of the learned Civil Judge on issues Nos. 1, 2 and 3 have been reversed. As stated earlier, the learned Additional District Judge was mainly influenced with the fact that Taj Din plaintiff produced oral evidence consisting of himself, Muhammad Shafique scribe, and marginal witnesses, namely, Saleem Javed and Muhammad Tahir, P.Ws.3 and 4 coupled with the admission made by D.Ws.2 and 3 in their cross‑examination. The learned Additional District Judge was of the opinion that the defendants Nos.1 to 3 had agreed to sell the land in dispute. I 'have already dealt with the document Exh.P.1 that the same has not been proved in accordance with the provisions of Qanun‑e‑Shahadat Order and has been exhibited in violation of Order XIII, rule 4 C.P.C. Regarding the admission of D.W.2 Mst. Ramzan Bibi and D.W.3 Mst. Jamila Bibi, the learned Additional District Judge picked up one sentence from the statement of Mst. Ramzan Bibi, D.W.2 in cross- examination, which is as follows:‑ Again, the learned Additional District Judge regarding the statement of Mst. Jamila Bibi D.W. has observed as follows:‑ The above two sentences attributed to D.W.2 Mst. Ramzan Bibi and D.W.3 Mst. Jamila Bibi could not have been read in isolation, but the total statements which have been made by the above‑said ladies with reference to their context, have to be read, and in this process if some erroneous admission has been made by the two illiterate Pardanishin ladies that could have not been the basis for recording a finding that the agreement in question was genuinely executed by the defendants in favour of the plaintiff, because it is rule or law of evidence that admissions are not conclusive proof of the matters admitted. In case report as Ahmad Khan v. Rasul Shah and others (PLD 1975 SC 311) it has been ruled that:‑ "An admission which is wrong in point of fact or is made in ignorance of legal right has no binding effect on the person making it. " Mst. Ramzan Bibi, D.W., in her examination‑in‑chief has categorically stated that she and other defendants had not agreed to sell the land to the plaintiff and no amount has been received from the plaintiff. No agreement to sell was executed in favour of the plaintiff nor she went to Sheikhupura and the agreement is forged and false. In cross‑examination she has categorically denied in the following words:‑ The next question is regarding the subsequent sale in favour of Mukhtar Ahmad, petitioner, who was subsequent vendee, Mst. Ramzan Bibi D.W. stated that:‑ Similar is the position with D.W.3 Mst. Jamila Bibi, who stated that she or defendants Nos. 1 and 2 never agreed to sell the land and never received the amount. She further stated that she never executed the agreement to sell or she has, put her thumb‑impressions. She further stated that she never went to Sheikhupura alongwith the plaintiff. In cross‑examination she has denied the suggestion that after receiving the more amount the land has been sold. She admitted that when she sold the land to Mukhtar the plaintiff filed the suit against them. The sentence which influenced the mind of the learned Additional District Judge was:‑ From the above‑stated sentences in cross‑examination it could have not been concluded that there was an agreement of sale entered between the parties or that the petitioners were not the bona fide purchaser with consideration and without notice. Regarding issue No.4, it is important to mention here that defendants petitioners appeared as D. Ws. and have categorically stated that they had no knowledge of the agreement between Taj Din and the defendants Nos. 1 to

3. So, on the principle laid down in Khair‑un‑Nisa's case (supra) the onus of proof that the petitioners had the knowledge of the agreement shifted .to plaintiff. No evidence has been led in rebuttal to discharge the onus. Even otherwise, where both the parties have led evidence, the onus of proof of an issue is of not much importance and loses its significance in the circumstances, of the case. The learned Additional District Judge has relied on the application Exhs.P.3 and P.4 submitted by Mukhtar Ahmad etc., subsequent vendee. Exh.P.3 is an application addressed to the Tehsildar, Nankana Sahib in which nothing is stated about the agreement ans this document is dated 11‑3‑1991. On the contrary, there is an order in Urdu dated 11‑4‑1989 which is as follows:‑ Then there is a statement dated 26‑6‑1989 alleged to have been made by Mukhtar Ahmad before Tehsildar, in which he has stated that the vendors had agreed to sell the land in favour of the petitioner- defendant. Exh.P.4 is an application moved to the Ilaqa Magistrate, Nankana Sahib dated 20‑6‑1989 by Abdul Ghani etc. Mukhtar Ahmad got a statement recorded before the Tehsildar in which he stated about the agreement is a mystery and therefore the document Exh. P.3 is not helpful to the respondents when there was nothing in the application Exh.P.3 about the agreement. There are two grounds for discarding the document Exhs. P.3 and P.4, which are that the suit was filed by Taj Din on 10‑4‑1988. Applications Exhs.P.3 and P.4 were filed during the pendency of the suit, i.e. on 11‑4‑1989 and 20‑6‑1989. Secondly, the documents Exhs. P.3 and P.4 were never confronted to Mukhtar Ahmad D. W. when he appeared in the witness‑box, This principle of law that a document cane be used against a person if it is confronted to him under the provisions of section 145 of the Evidence Act (Article 140 of the Qanun‑e‑Shahadat Order, 1984) was interpreted in the case reported as Akbar Hayat and 4 others v. Mst. Fazal Karim (PLD 1971 SC 30), wherein it was held that:‑ "Parties relying on admission contained in a document to other party in cross‑examination in order to contradict him, admission contained in previous statement cannot be used as legal evidence without complying with the procedure laid down in section 145 of the Evidence Act." This view is consistent and in case of The State v. Habib‑ur‑Rehman and others (PLD 1983 SC 286) the Supreme Court rejected the plea that it was a practice not to invite intention of witnesses to properly mark/exhibit documents. Held; besides being unfair .to witnesses, not in accord with provisions of section 162 of Cr.P.C. and section 145 of the Evidence Act. The learned counsel for the respondent‑plaintiff has contended that the defendants have not stated in so many words in written statement that they are bona fide purchasers with value without notice. This contention has no force, because in para. 4 of the preliminary objections it has been stated:‑ In this view of the matter, the finding recorded by the learned Additional District Judge on issue No.4 is also reversed and the finding of the Civil Judge that defendants Nos.4 to 8 are bona fide purchasers with consideration is restored. Where two Courts below differed on the issue of fact, it is open for this Court to appraise the evidence and to record its own, conclusion after proper appraisal of evidence on record in exercise of its revisional jurisdiction under section

115. C.P.C. See case reported as Mst. Amir Begum v. Muhammad Naeem Khan (PLD 2000 SC 839). For what has been discussed above, this revision petition is accepted, the order of the Additional District Judge, Nankana Sahib dated 6‑6‑1992 is set aside and the judgment and decree dated 20‑7‑1991 of the Civil Judge, Nankana Sahib is restored resulting in dismissal of the suit of Taj Din with costs. Q.M.H./M.A.K./M‑914/L Revision allowed.