1989 PLP 434 (CLC)

The case as set out in the plaint in Suit No.2261/1972 is that the petitioner entered into an agreement with respondent on 18‑1‑1965 for the purchase of structure containing tin shed of three rooms on Plot No.F/148, Zubairi Colony, Karachi for a consideration of Rs.2,

000. The petitioner took physical possession of the aforesaid structure on 18‑1‑1965 after paying to the respondent Rs.500 as first instalment and the balance of Rs.1,500 was paid by the petitioner to the respondent in instalments till 12‑10‑1966 when the above agreement was reduced into writing and a separate receipt acknowledging the payment of entire consideration of Rs.2,000 was issued by the respondent. In the agreement it is recited that the price for sale of the structure was settled at Rs.2,000 that the respondent had received Rs. 2,000 in instalments. The agreement was executed according to the petitioner on October 12, 1966. According to the recitals in the agreement Rs.2,000 were paid by the petitioner in instalments, under the terms of. the agreement, but there was not even a slip of paper taken from the respondent acknowlodging receipt of the money. The agreement was not executed by the respondent till October 12, 1966, even on the petitioner's case. The story that the petitioner parted with this large sum of money without taking any receipt from the A respondent is highly improbable. A perusal of receipt shows that Rs.2,000 were received by the respondent from the petitioner on 12‑10‑1966. There is no mention of instalments. The petitioner took physical possession on payment of Rs.500 only and was willing tot pay Rs.1,500 in instalments. As prudent person he would have asked the respondent to acknowledge in writing the receipt of money. The recital incorporated in the agreement until it was executed could serve no purpose. Such a recital incorporated an agreement engrossed on a stamp paper purchased by the respondent. It would be difficult to believe that the petitioner would part with a large sum of money without obtaining from the respondent a writing acknowledging receipt of the amount. There is one more circumstance which has relevance in his case. The petitioner had mentioned in his counter‑affidavit filed in D.W. proceedings that he had purchased the house in 1965. The petitioner admitted in his cross‑examination that he was ordered to produce proof of this ownership but he had not produced any such proof before that Court. The petitioner deposed in his examination that there was no agreement executed between him and the respondent. The agreement and the receipt on which reliance was placed were not originally produced in the plaint. The petitioner did not care to send the agreement and receipt to the handwriting expert. The conduct of the petitioner in avoiding to send the documents for examination by an independent handwriting expert also raised a serious suspicion against the truth of his story. The petitioner did not examine the stamp vendor nor the attesting witness. P.W.2 Muhammad Ali deposed that the respondent got his signature on a document which was already written. The document bears the signature of witness Nizamuddin. I He deposed that he saw the respondent for the first time on the day when he paid the amount to Sharif. In my view, the testimony of P.W.2 Muhammad Ali was rightly regarded by the Court below as unreliable. I shall deal with the criticism levelled by learned counsel for the petitioner with regard to the admissibility and the evidentiary value of documentary evidence. It is section 67, Evidence Act or Article 78 of Qanun‑e‑Shahadat, 1984 which would apply. Section 67/Article 78 do not lay down any particular mode of proof for proving that a particular writing or signature is in the hand of particular person. Thus, the signatures may be proved in any one or more of following modes:‑ (a) By calling the person who signed or wrote a document; (b) By calling a person in whose presence the documents are signed or written; (c) By calling handwriting expert; (d) By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written; (e) By comparing in Court the disputed signature or handwriting with some admitted signatures or writing; (f) By proof of an admission by the person who is alleged to have signed or written document that he signed or wrote it; (g) By the statement of a deceased professional scribe made in the ordinary course of business that the signature on the document is that of a particular person. A signature is also proved to have been made, if it is shown to have been made at the request of a person by some other person, e.g. by scribe who signed on behalf of the executant; (h) By other circumstantial evidence. It is in the light of the aforesaid legal position I proceed to examine whether the sale agreement (Ext.2) and receipt (Ext.3) are proved to have been signed by the respondent. The sale agreement and receipt have been attested by two witnesses, one Muhammad Ali and the other Nizamuddin. It is said that out of the said two persons only one is alive and the other is dead. The only attestor who is alive is one Muhammad Ali who has been examined as P.W.2. The evidence of P.W.2 is that the document was already written and it was also bearing the signature of Nizamuddin and the respondent. He is categorical in his statement that he was not present when the respondent is alleged to have executed the sale agreement. Thus the agreement (Exh.2) cannot be said to have been proved through any of the attestators. The only attesting witness examined before the Court has denied that the respondent signed the agreement in his presence and he attested the signature of the respondent. The execution of Ext.2 may, therefore, be proved by other evidence that is by calling the handwriting expert but no steps were taken by the petitioner in this behalf. The original documents and the admitted signatures of the respondent were sent to the handwriting expert by order dated 1‑4‑1987. Ghulam Abbas Jaffery, Assistant Inspector‑General of Police, Handwriting Expert sent his report dated 20‑8‑1987 wherein he opined that the prominent characteristics of the disputed signatures on agreement and receipt dated 12‑10‑1966 are not in agreement with those of the specimen of respondent on written statement, counter affidavit and vakalatnama. I have made a very careful comparison between the alleged signatures of respondent on these two disputed documents and the signatures on the written statement, counter‑affidavit, Vakalatnama and specimen signatures obtained by me and I find that the signatures of respondent on the latter set of documents are totally dissimilar to the signatures on Exts. 2 and

3. In fact the signatures on the written statement, counter‑affidavit, Vakalatnama and the specimen signatures appear to be in different hand altogether from that in which signatures are written on Exts. 2 and

3. The signatures on H written statement and Vakalatnama are in mature writing, as against the signatures on Exts.2 and 3, the writing whereof is immature. A mere glance at the two set of documents would be sufficient to show that the signature of respondent is written on written statement, counter‑affidavit, Vekalatnama and specimen signatures by one person, and on Exts.2 and 3 by another different person. I have to therefore, agree with the views of the Courts below that the due execution of ,agreement and receipt has not been proved in this case. The circumstances of the case are, in my Judgment, eloquent. There is no documentary evidence apart from the disputed writing evidencing payment of Rs.2,000 by the petitioners to the respondent. The petitioner has not led any evidence to support his case that he has: a substantial amount of cash with him. He has not produced account in support of his case. I have carefully considered the evidence of the witnesses and the relevant documentary evidence and I have no doubt that the Courts below were right in holding that documents Exts.2 and 3. which purport to bear the signatures of the respondent are fabricated documents and the petitioner was inducted as a tenant by the respondent. The learned Courts below had considered these documents and having read the same coniunctivply with the other evidence brought on record and discussed by the Courts below. It was held that neither sale agreement nor payment of price had been established by the petitioner. It has been rightly pointed out by the learned‑counsel for the respondent that the points relate to controversies of facts and having been concurrently found against the petitioner, there is hardly any justification for this Court to interfere therewith in exercise of its revisional jurisdiction . In the circumstances the revision petition fails and is dismissed with costs. M . Y . H . / M‑612/ K Petition dismissed.