2004 PLP 1999 (YLR)

7. I have heard the arguments advanced by Mr. Muhammad Sharif, Advocate on behalf of the plaintiff and Mr. Khalilur Rahman, Advocate appearing on behalf of defendant No.1. Mr. Adnan Ahmed argued the case of defendant No.2.

8. Issue‑wise findings are as under:‑‑ ISSUES NOS. 1. 2. 3 and 6: As Issues Nos. 1, 2, 3 and 6 are inter‑linked, those are being dealt with jointly. The plaintiff in his affidavit in evidence stated that defendant No.2 approached him as the lawful attorney of defendant No. 1 for sale of disputed Plot No.19‑A situated at Block 6, P.E.C.H.S., Karachi, regarding which a dispute was pending adjudication in Suit No.168 of 1988 saying that defendant No.1 and the plaintiff in the said suit were entering into a compromise and for this purpose, defendant No.1 immediately needed Rs.42,00,000 to pay to the plaintiff in the said suit and therefore defendant No. 1 was willing to sell the suit plot for Rs.90,00,

000. He agreed to purchase the said property and paid US $ 95,500 equivalent to Pak. Rupees 42,00,000 and further agreed to pay the balance amount of US $ 1,04,500 at the time of execution of the conveyance‑deed before the Sub‑Registrar. He has also produced two receipts dated 28‑4‑1998 and 12‑6‑1998 duly signed, by defendant No.2 as attorney of defendant No. 1 acknowledging receipt of US $ 95,500 and US $ 19000 from the plaintiff as part payment towards sale consideration of the suit property. However, the plaintiff chose not to appear for cross‑examination rendering his examination‑in‑chief valueless. Defendant No.2 also did not appear in the witness‑box to support the case of the plaintiff and to rebut the allegations levelled by defendant No.1 against him. The mother/attorney of defendant No.2 was however examined on his behalf as Exh.39. In her affidavit in evidence Exh.40 she stated that ‑ on the direction of defendant No.1, Mst. Nasreen Yousuf, the property in question was agreed to be sold to the plaintiff who paid US$ 95,500 as part payment of agreed sale consideration of Rs.90 lacs to defendant No.1. However, she could not produce the original power of‑attorney authorizing her to adduce evidence on behalf of defendant No.2 although time was granted for the said purpose. Even the photostat copy of the power‑of‑attorney produced by her is incomplete and the last page where the executant signs and where the specimen signatures of the attorney are appended is missing. Defendant No.1, Mst. Nasreen Yousuf, in her affidavit in evidence Exh.20 stated that the signatures of defendant No.2 on the receipt of Exhs.5 and 6 whereby defendant No.2 in the capacity of attorney of defendant No.2 is shown to have received US$ 95,500 and US $ 19000 from the plaintiff as part payment towards the sale consideration of the suit property, are forged. She further stated that she never agreed or authorized defendant No.2 to sell the suit property for US$ 2,00,

000. She further deposed that she and her husband who are U.K./U.S.A. Nationals and are doing lucrative business in London for the last more than 20 years, they were seized of sufficient funds and were not in need of borrowing small amount of Rs.42,00,000 from the plaintiff for further amount to pay stamp duty. She further stated that she and her husband used to keep their money in the account of mother of defendant No.2, Mst. Riaz Bibi so that on their visit to Pakistan for purchase of property in Karachi, the money could be easily available at their disposal. According to her, both, Mst. Riaz Bibi and her son, defendant No.2, were holding and operating PLS Account (Donor account as well as Rupee account) in Faisal Bank Ltd., Clifton Branch, Karachi. She produced copies of Bank statements of Mst. Riaz Bibi and Faisal Jameel, defendant No.2, as Exh.21 to Exh.24. She further stated that the plaintiff is a close friend of Jameel Akhtar Kiyani, father of defendant No.2, and he was set up as a prospective purchaser and was, thus, a dummy purchaser. She further stated that because she had not become owner of the suit plot before 13‑6‑1998 i.e. the date on which conveyance‑deed in respect of the suit property was executed in her favour by the Official Assignee, under the law the alleged transaction of sale dated 29‑4‑1998 could not be entered into. Defendant No.1 also examined her husband, Muhammad Yousuf Busal, as Exh.32. He supported the case of defendant No. 1 set out in her evidence. He also produced copies of the same bank statements duly certified by the bank authorities of Mst. Riaz Bibi and defendant No.2 which were produced by defendant No. 1 in her evidence. So far as the execution of power‑ of‑attorney (Exh.7) by defendant No.1) in favour of defendant No.2 is concerned, defendant No.1 in her evidence has admitted the same to have been executed by her in favour of defendant No.2. She further admitted that she had executed the said power‑of‑attorney without any coercion and fear. Her husband in his evidence also recognized the signature on the said power‑of‑attorney to be of defendant No.

1. He also admitted the contents of the power‑of‑attorney. However, the main point to be decided is, as to whether the plaintiff was an independent and genuine buyer and the transaction was valid, or the plaintiff was a dummy set up by defendant No.2 and the transaction was invalid, and the defendant No.2 himself was the beneficiary. And if so, did he act bonafidely and that in the circumstances of the case was defendant No.2 required to obtain consent or instructions of defendant No.1 before entering into the alleged sale transaction with the plaintiff. Defendant No. 1 and her witness/husband in their evidence produced bank statements pertaining to the account of defendant No.2 and her mother/attorney, Mst. Riaz Bibi. On the basis of said bank statements, defendant No. 1 pleaded that on 30‑4‑1998 an amount of US $ 92,200 equivalent to Pak. Rupees 42,07,086 was withdrawn from the account of Mst. Riaz Bibi and was encashed from Messrs Khanani & Kalia International (Pvt.) Ltd., authorized money changers, and was credited in the account of defendant No.2 on the same date through Messrs Habib Bank A.G. Zurich Ltd. with the permission of State Bank of Pakistan. Letter of the said money changers to this effect has also been produced as Exh.25. On the same date an amount of Rs.42,00,000 was transferred from the account of defendant No.2, Faisal Jameel, Kiyani, in the shape of pay order to the account of Muhammad Yasin Khan Sherpao, the plaintiff in Suit No. 168 of 1988. Perusal of the bank statements and other documents produced by defendant No.1 strengthens the plea of defendant No.

1. It is undeniable fact that all these transactions took place on one and same date viz. 30‑4‑1998 e.g. similar amount was withdrawn from the bank account of Mst. Riaz Bibi, then on the same date it was credited in the account of defendant No.2 and again on the same date it was withdrawn from the account of defendant No.2 and was paid to Muhammad Yasin Khan Sherpao, the plaintiff in Suit No.168 of 1988 through pay order. Though defendant No.1 was subjected to lengthy cross‑examination, yet strangely enough not a single question was put to defendant No. 1 or her witness on behalf of the plaintiff to rebut the above plea. Neither the authenticity of the statement of bank account was questioned nor the specific plea of defendant No.1 was challenged or refuted. The suggestions put by plaintiff's counsel in this respect are of formal nature and are of no help to the plaintiff, rather the same support the case of defendant No.1. The relevant portion from the cross examination of defendant No.1 is as under:‑‑ "I see Exh.21 and say that this bank statement relates to the account of Mrs. Riaz Bibi. It is correct to suggest that Mrs. Riaz Bibi is not a party to this case. I had obtained these copies from the bank by order of the Court." As a matter of fact, very serious allegations levelled by defendant No.1 and her witness on the point of maintenance of bank account by Mst. Riaz Bibi went unrebutted and unchallenged in the cross examination. The said plea of defendant No.1 also gets support from the cross examination of Mst. Riaz Bibi. It would be advantageous to reproduce hereunder the relevant portion from her cross examination:‑‑ "I had a bank account at Faisal Bank as Dollar account. I have no knowledge about the bank account of my son, I do not know about the deposit and withdrawal of amounts from my bank account. I see my statement of account Exh.34 and say that on 30‑4‑1998 there is a withdrawal of Dollar 92,

200. It is not within my knowledge as to whether this amount was exchanged in Pak. Rupees from Kalia Money Changer. I do not remember as to whether I went to bank myself: for the withdrawal of this amount I do not know as to whether on 30‑4‑1998 my amount was deposited in the bank account of Mr. Faisal." It seems astonishing to note that though Mst. Riaz Bibi was herself an account‑holder, she proved to be absolutely unconcerned. For instance, she was totally unaware about the deposit in and withdrawal from her own account. Surprisingly, as per position taken by her in the cross‑examination she did not remember that whether for withdrawal of such a huge amount she personally went to the bank or not. In cross‑examination she also did not deny in clear words that the amount so withdrawn from her recount was credited in the account of her son, defendant No.2. As such, a positive inference was to be drawn that the said suggestion has been admitted. Furthermore, while her cross‑examination was not over and was reserved for certain purpose, she did not turn up and chose not to appear for further cross‑examination without giving any cogent reasons, resultantly, the counsel for defendant No. 1 could not complete his cross‑examination. It hardly needs to be emphasized that cross‑examination is a continuing part of the whole statement, rather more important than the examination‑in‑chief. If any reference is needed, case of Mukhtar Ahmed v. The State 2003 SCMR 1374 can be conveniently cited. Admittedly the plaintiff in the instant case did not appear in the witness‑box for his cross‑examination to assert his claim, with the result that his whole statement could not come on record. It is cardinal principle of law and well‑settled that where a party has abstained from giving evidence in his own case, about the facts in his personal knowledge, presumption would be that the truth lays on the other side. It is equally established proposition that contesting parties are under obligation to undergo the test of cross‑examination. Article 133 of the Qanun‑e‑Shahadat, 1984 stipulates and regulates the order of examination, according to which witness shall be first examined‑in‑chief, then (if the adverse party so desires) ‑cross‑examined, then (if the‑party calling him so desires) re examined. In Attaullah Malik v. The Custodian Evacuee Property and others PLD 1964 SC 236 it was held as under:‑‑ "It may be observed that every person against whom an affidavit is produced is entitled in the absence of special circumstances to have the deponent put in the witness‑box and to cross‑examine him." One may advantageously refer to the proviso to Order XIX, rule 1, C.P.C. which provides that when any party bona fide desires the production of a witness who has given evidence by affidavit for cross examination, the Court may direct the production of such a witness. In Abdul Hameed v. Karam Dad PLD 1966 Lah. 16 the provisions of Order XIX of the Code of Civil Procedure came to be discussed. A principle of law was laid down that in proceedings which are not of an interlocutory nature the admission of affidavit in evidence is subject to the proviso which is an important safeguard for tee truth, that in case the opposite party demands the attendance of the deponent for his cross‑examination, the party relying on the affidavit must produce him in the witness‑lox. If the deponent fail to submit to the cross‑examination, the affidavit shall lose all it's force and cannot be acted upon. This view was fully endorsed by Honourable Supreme Court in the President v. Mr. Justice Shoukat Ali reported in PLD 1971 SC

585. It goes without saying that the power and opportunity to cross‑examine is one of the principal tests which the law has devised for the ascertainment of truth, and this is certainly a most efficacious test. By, this merits the situation of the witness with respect to the parties and the subject of litigation, his interest, his motives, his inclination and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discerning facts in the first instance and his capacity for retaining and describing them, are fully investigated and ascertained, and submitted to the consideration of the Court. Affidavit in evidence is of no legal value and consequence if it's deponent does not make himself available for cross examination. A party against whom affidavit is produced, is entitled to have deponent put in witness‑box and to cross examine him. If a deponent fails to submit to cross‑examination, the affidavit, in such circumstances, shall lose all it's force as probative piece of evidence in the case and cannot be acted upon. On the basis of above discussion, it could be said with certainty that the principle of law that where the witness fails to tender himself for cross‑examination, his evidence would be inadmissible is undisputedly absolute. Allegations were specifically levelled by defendant No.1 against defendant No.2 that he has set up the plaintiff who was a dummy purchaser as the defendant No. 2 and his rather wanted to usurp the property of defendant No.1 who being relative of defendant No.2 and his father trusted them but was betrayed. In such circumstances it had become imperatively incumbent upon defendant No.2 to have appeared in the witness‑box to refute such allegations. But for the undisclosed reasons he decided not p to appear as his own witness. His mother could not and virtually did not successfully refute the allegations leveled against the individual conduct of defendant No.2 which reflected adversely upon him. The plaintiff also did not appear in the witness‑box while his cross‑examination was abandoned and left incomplete. Despite several opportunities afforded, he did not put his appearance and ultimately on 26‑6‑2002 it was ordered that in case the plaintiff fails to appear on 7‑3‑2002 before the Commissioner, his side will automatically stands closed. It is a matter of record that on 7‑3‑2002 and even thereafter he did not turn up. The sum total of the above discussion was adequate enough to arrive at a conclusion that the plaintiff has failed to rebut the assertion made on oath by defendant No.1 that he was a dummy purchaser set up by defendant No.2, and G defendant No.2 has also failed to rebut the allegation of defendant No.1 that defendant No.2 acted without the consent of defendant No.1 and against her interest and that, in fact, defendant No.2 purchased the property for his own benefit. Issues Nos. 1, 2, 3 and 6 are, therefore, answered in favour of defendant No.

1. ISSUES Nos.4 and 10: Learned counsel for defendant No.1 contended that specific performance is a discretionary relief and that the Court has to look into the circumstances of the case to arrive at a conclusion whether the party approaching the Court for the relief of specific performance, is entitled to such relief. In support of his contention, he relied upon the case reported as Mir Hashmat Ali v. Birendra Kumar Ghosh and otters PLD 1965 Dacca 56 and an unreported judgment of this Court passed in R. A. No. 116 of 1992. In view ,of findings on Issues Nos. 1, 2, 3 and 6 that the alleged sale transaction of the suit property between the plaintiff and defendant No. 1 having been found to be invalid, and not binding upon H defendant No. 1, discretionary powers for the grant of specific performance cannot be exercised in favour of the plaintiff. Resultantly, these issues are also answered in favour of defendant No.

1. ISSUES Nos.7, 8 and 9: In view of the findings arrived on above discussed issues, Issues Nos.7, 8 and 9 have rendered inconsequential. Even otherwise those are hardly relevant after the decision given on the preceding issues. ISSUES Nos.5 and 11: In view of the findings on Issues Nos. 1 to 4 and 6 to 10, the plaintiff is not entitled to the grant of decree as prayed in the suit. Accordingly, the suit is dismissed. In the peculiar circumstances of the case, there will be no order as to costs. M.H./M‑52/K Suit dismissed.