2002 PLP 3379 (YLR)

2. Learned counsel for the petitioner contends that notwithstanding the fact that the agreement was not attested by any witnesses, the execution of the same stood proved inasmuch as the scribe was produced. He also states that learned trial Court had compared the signatures of the petitioner on the agreement with the signatures available on record and found that the agreement does bear the signatures of respondent No.

1. Learned counsel for the respondents on the other hand argues that this is a case of no. evidence inasmuch as the scribe did not know respondent No.1. Further argues that the property had been transferred to respondent No.2 before the date of the said agreement.

3. I have gone through the trial Court records, with the assistance of the learned counsel for the parties. I find that agreement stated to be dated 13‑6‑1983 is on record as Exh.P.1. As per trial Court record as also as per the records of this civil revision comprising certified copies of the evidence, the document is spread over two pages. It purports to bear the signatures in English of respondent No. 1 as also his thumb impression. The name of the witnesses are mentioned as Mehr Noor Hussain and Muhammad Nazir Baig. The second page bears signatures of Mirza Waheed Baig but there are no signature of the witnesses. The name of the scribe also is not mentioned. I have noted that the document appears to be incomplete. The last three lines of the document read as under:‑‑ The document ends here it is but obvious that there must have been a third page or may be more pages. None of the learned Courts below have taken note of this fact.

4. It is true that no witness has attested this document but this does not make the document invalid by itself inasmuch as the document was allegedly executed at a point of time when Qanun‑e‑Shahadat Order, 1984 had not been promulgated and as such there was no law requiring attestation of the document by two witnesses.

5. The other aspect of the case is that although respondent No.1 claims and respondent No.2 admits that the property had been sold by the latter to the former for a consideration of Rs.1,60,000 but nothing is forthcoming on record as to on what date the sale took place and in what manner it was completed.

6. The scribe of course is of no help to the petitioner inasmuch he states that he does not know respondent No. 1.

7. What has happened in this case is that the learned trial Court proceeded to compare the signatures of respondent No.1 as appearing on document Exh.P.1 with the admitted signatures of respondent No.1 on the side line of order sheet dated 22‑12‑1984 and he concluded that signatures on Exh.P.1 are that of the respondent No.1. Now learned Additional District Judge has dealt with this matter in his impugned judgment as follows:‑ "The other reason which prevailed with the learned trial Court was the comparison of signatures of defendant No.

1. I am afraid that this view of the trial Court is not correct. As has already mentioned above that execution of P.1 by defendant No.1 is not proved so the decree cannot be passed merely on the basis of comparison of signatures since the Court is not the Expert. It may be used for the corroboration but when the original document is not proved then this comparison does in no way help the plaintiff. "

8. A bare reading of the said observations of the learned Additional District Judge would. show that he was oblivious of the law on the subject. Under Article 84 of Qanun‑e‑Shahadat Order, 1984 (section 73, Evidence of Act, 1872). The Court of law has all the authority to proceed to compare the signatures on a disputed document with the admitted or proves signatures of the said party or person. The Honourable Supreme Court in the case of Ghulam Rasool and others v. Sardar‑ul- Hassan and another (1997 SCMR 976) rejected the contention raised on behalf of the petitioner before the apex Court based on same reasoning as that of the learned Additional District Judge by observing as follows at page 977 of the report:‑-- "The above contention is untenable as it is within the power of a Court to compare the disputed signature with the admitted signature and to form its view though it is advisable to refer the matter to the hand writing expert. However, the fact that the same was not referred would not render the order/judgment legally infirm as to warrant interference." The learned Additional District Judge, however, appears to be unaware of his own powers as well. He being the last Court of fact was himself also authorised to differ with the conclusion of the learned trial Court for the reasons recorded. Now so far this Court is concerned, the legal position is that the finding based on comparison of signatures by a Court does not constitute even question of law much less a question of jurisdiction.

9. I may further note here that the said exercise undertaken by the trial Court is but one of the modes of the proof of document. The matter of original receipts for consideration not being produced by the petitioner on the plea that he had delivered the same back to respondent No.1 is also to be considered by the learned First Appellate Court during overall consideration of the matter in controversy.

10. For the reasons stated above, I find no choice but to remand this case to learned Court of first appeal for rehearing of the appeal filed by respondents No. 1 and 2 and to re‑consider the entire evidence on record including the matter of comparison of the signatures by the learned trial Court and conclusion arrived at by it.

11. This civil revision is accordingly allowed. The impugned judgment and decree of the learned First Appellate Court dated 5‑6‑1994 is set aside. The result would be that the first appeal filed by respondents Nos.1 and 2/defendants shall be deemed to be pending before the learned District Judge Lahore to whom the record shall immediately remitted back: The parties shall appear before the learned District Judge on 7‑3‑2002. The learned District Judge shall then either himself proceed with the matter or entrust the appeal to a learned Additional District Judge, who shall hear the parties, and consider the entire evidence on record in the light of the observations made above particularly conclusion of the learned trial Court upon comparison of signatures in overall context of evidence on record and thereafter to decide the appeal. No order as to costs. H.B.T./W‑47/L Order accordingly.