' M. JAVED. BUTTAR, J.---This direct appeal (converted from C.P. No,261-L of 1998 vide this Court's order dated 8-11-1999), under Article 184 (3) of the Constitution of the Islamic Republic of Pakistan, 1973, is directed against the judgment and decree dated 6--11-1997 of the Lahore High Court, Multan Bench, whereby R.F.A. No,83 of 1990, instituted by the respondent/defendant, against the judgment and decree dated 8-12-1990 passed by Civil Judge, 1st Class, Multan decreeing the appellant's suit for Specific Performance, was allowed the judgment and decree passed by trial Court was set aside and the appellant's suit was dismissed holding the appellant responsible to bear costs of the proceedings throughout.
2. The facts of the case are, that the appellant instituted a suit on 21-8-1983, for seeking declaration to the effect that he was owner in possession of the suit-land, detailed in the plaint under agreement of sale dated 12-7-1979 (Exh.P-1) receipts dated 16-10-1979 (Exh.P-2) and dated 1-7-1981 (Exh.P-3) and in the alternate prayed for grant of decree for Specific Performance by way of direction to the respondent-Mst. Wazeeran Mai alias Mst. Wazir Mai to get the sale deed completed. It was alleged in the plaint, that respondent being owner of the suit-land had executed the above-said agreement to sell (Exh.P-1) in favour of the appellant/plaintiff for a consideration of Rs,5,20,000 and received Rs,3,00,000 at the time of execution of the above-said agreement and subsequently received amounts of Rs,200,000 and Rs,20,000 through the above-said two receipts (Exh.P2 & P3), that the appellant was in possession of the suit-land since 12-7-1979 as an owner and as the defendant was neither acknowledging his title nor willing to convey the title, hence the suit.
The suit was resisted by the respondent. The execution of Exh.P-1 & Exh.P-3 was denied. The respondent's case is that these documents were forged and fabricated, she had neither signed the said documents nor had put her thumb-impressions on them. It was further stated that the appellant was step-brother of her husband Fida Hussain, she was residing in Satellite Town, Gujranwala, the relations between her and her husband became strained which led to the institution of a Suit for dissolution of marriage by her, at Gujranwala, which was ultimately consigned to the record due to non-prosecution, that one Mst. Jameela Khatoon, sister of her husband, lodged a report (F.I.R. No,220) in Police Station Kotwali Multan on 16-4-1978, against Fida Hussain, the husband of respondent, to the effect that respondent had strained relations with her husband Fida Hussain, for which reason she had taken up her residence for the last three years in Gujranwala as she was permanent resident of Gujranwala, that on 15-4-1978 when she (respondent) was in Multan to contest the cases (the suit for Restitution of Conjugal Rights etc.), she was abducted by the appellant/plaintiff, her husband Fida Hussain and accomplices, that she was recovered by bailiff of the High Court (Multan Bench), her statement was recorded on 3-12- 1979, whereafter she was set at liberty, she was also examined by the Ilaqa Magistrate, under section 164, Cr.P.C., that during the period of her illegal confinement by the plaintiff, the plaintiff took her photograph and coerced her to sign some blank papers which might have been converted into afore-said alleged agreement of sale. The trial Court, from the pleadings of the parties, framing as many as eight issues out of which learned counsel for the parties at the appeal stage concentrated on issues Nos.6 and 7, which are as follows:-- "(6) Whether the defendant has agreed to sell the suit-land in favour of the plaintiff vide agreement to sell dated 12-7-1979? OPP.
(7) Whether the defendant has received the total sale price of Rs,5,20,000 vide receipts dated 16- 10-1979 and 1-7-1981? OPP."
3. The appellant examined Khalid Hussain as P.W.1, Allah Bakhsh P.W.2 Hussain Bakhsh P.W.3 besides himself as P.W.4. He tendered in evidence seven documents, namely, agreement to sell dated 12-7- 1979 (Exh . P-1), receipt of Rs . 2,00,000 dated 16-10-1979 (Exh. P-2), Receipt of Rs,20,000 dated 1-7- 1981 (Exh.P-3), certified copy of the Record of Rights relating to the year 1979-80 Exh.P-4) certified copy of the Jamabandi pertaining to the years 1976-80 (Exh.P-5), copy of Khasra Girdawari of Mauza Rehem Ali pertaining to years 1980-83 (Exh. P-6) and copy of statement (under objection)
(Exh.P-7).
4. The respondent appeared as DW-I and produced following documentary evidence, namely copy of F.I.R No,220.Dated 16-4-1978, Police Station Old Kotwali Multan (Exh.D-1), copy of order passed by the High Court dated 3-12-1979 (Exh.D-2), copy of the statement of defendant dated 3-12-1979 (Exh.D-3), copy of the report of bailiff dated 3-12-1979 (Exh.D-4), copy of the habeas corpus petition dated 24-11-1979 (Exh.D-5), copy of the plaint dated 14-6-1982 (Exh.D-6), copy of the application under Order XXXIX, rules 1 and 2, C.P.0 (Exh.D-7), copy of the order passed by the Senior Civil Judge, Multan dated 24-5-1983 (Exh.D-8), copy of the memo. Of appeal dated 5-6-1983 (Exh.D-9), copy of the order passed by the Additional District Judge, Multan dated 5-9-1983 (Exh.D-10), copy of the order of Senior Civil Judge,. Multan dated 21-11-1983 (Exh.D-11), copy of the order of the Special Court Banking Multan dated 1-8-1988 (Exh.D-12) and copy of the decree sheet dated 1-8-1988 (Exh.D-13).
5. The trial Court decided issues No,1 to 5 against the respondent, in regard to issues Nos.6 and 7, it was held that the appellant successfully proved the execution of documents Exhs.P1, P2 & P3, which were executed validly and voluntarily by the respondent, in the following manner: ' At the best it can be presumed that on 29-11-1979 the defendant was in the house of the plaintiff.
There is nothing on the file to suggest that she remained in the hands of the plaintiff from 15-4-1978 to 29-11-1979. The case of abduction has admittedly been cancelled. The defendant did not lodge any private complaint against the plaintiff and others. There is no evidence on the file to see that at the time of execution of documents Exh.P-1 to Exh.P-3 the defendant was in the custody of the plaintiff 18. P.W.1 to P.W.3 have categorically stated about the execution of documents Exh.P-1 to Exh.P-3 and payment of consideration except certain minor discrepancies, which are bound to occur because their statements were recorded after about 5/6 years of the execution of the documents in question. P.W.1 is relative of the plaintiff but P.W.2 and P.W.3 are not his relatives. They are independent witnesses. Even otherwise, the statement of P.W.1 cannot be thrown out because of his relationship with the plaintiff unless some other reason is involved. He is not a beneficiary of the disputed property. No doubt none of the relatives of the defendant were present at the time of execution of documents Exh.P-1 to Exh.P-3 but she could at least have produced them at trial but she was failed to do so".
6. It has already been stated above, that the appellant's suit was decreed by the trial Court but the High Court reversed the findings, in appeal filed by the respondent/defendant and dismissed the suit.
7. The learned Judges of the High Court, after hearing learned counsel for the parties, while referring to section 16 of the Contract Act No,IX of 1872, held that the beneficiaries of the documents executed by ignorant/illiterate/Parda-observing ladies, have to prove by overwhelming evidence, execution of such documents by such ladies and they have to further prove that such transactions and such documents were explained to the executants who had independent advice at the relevant time. The learned Judges in this regard, referred to the following case-law and also quoted extensively from the said judgments:-
(1) Moonshee Buzloor Ruheem v. Shumsoonnissaa Begum and Jodonath Bose v. Shumsoonisa Begum (Moore's Indian Appeals 1863-65 Vol-II 551),
(2) Farid-un-Nisa v. Mukhtar Ahmad and another (1925 Indian Appeals-342),
(3) Sudisht Lal v. Mussamut Sheobarat Kore Privy Council Vol:VII Calcutta 245),
(4) Tara Kumari v. Chandra Mauleshwar (AIR 1931 P.C.303),
(5) Sm. Karunamoyee Debi v. Sm. Maya Moyi Novi Debi and others (AIR 1948 Cal. 84),
(6) Crown v. Bahadar Khan (PLD 1954 Pesh. 39).
(7) Mst. Havva v. Muhammad Yousaf and others (PLD 1969 Kar. 324),
(8) Suratan Nessa Bibi v. Muhammad Naeemuddin Mondal and others (PLD 1965 Dacca 531),
(9) Sree Sree Gopal Jeo Bigraha and others; v. Mst. Mahmuda Begum and others (PLD 1968 Dacca 265),
(10) Ayana Dasi v. Arena Bala Dasi and others (PLD 1961 Dacca 140),
(11) National Bank of Pakistan v Hijra Bai and others (PLD 1985 Kar. 431),
(12) Wali Muhammad v. Muhammad Ibrahim and others (PLD 1989 Lahore 440),
(13) Syed Mansoor Ahmad v. Mst. Maqbool Begum and others (1990 SCMR 1259),
(14) Janat Bibi v. Sikandar Ali (PLD 1990 SC. 642),
(15) Mst. Hafiza Bibi v. Ali Hussain and others (1994 SCMR 1194).
8. The learned Judges of the High Court after stating the principle of law stated above, on the basis of evidence produced by the parties, held as follows:-- "
7. Applying these principles to the facts and circumstances of the case in hand, it is quite clear that the appellant is a semiliterate Pardahnashin lady. She was clearly entitled to the above protections. The perusal of Exhs. P-1 to P-3, clearly shows that these documents were executed on plain papers; that these were not scribed by any petition-writer; that no place of their writing was mentioned; that these documents were neither read to the appellant nor any independent advice was available to her at the relevant time. These documents, therefore, were not proved. Within the term of section 16 of the Contract Act. We have, therefore, no doubt in our mind that the respondent had miserably failed to prove that at the relevant time the contents of aforesaid documents were read over to the appellant; that these were explained to her; that she had access to independent advice at that time. As already shown, these documents carry a cloak of surreptitiousness. These are written on a plain paper; that their scribe had not been produced in witness-box to face the test of cross-examination. It is true that P.W. Khalid Hussain/M/0 of Exh.P-1 stated that this document was read over to the appellant and was explained to her. However, his worth was totally demolished in cross-examination. He admitted that respondent was his brother-in-law; that he made an effort to conceal the real relationship between appellant and her husband. He sated that he did not know that appellant had filed a suit for dissolution of marriage against her husband and that she had been living in Gujranwala; that Fida Hussain had filed a suit for restitution of conjugal rights against her in Multan in year 1978. He admitted that Exh. P-1 had been written in Kotla Rahim Ali . In the house of respondent where the scribe had been called; that no stamp was purchased and no petition-writer was summoned. On the survey of the above features of his evidence, it could be safely concluded that no reliance can be placed upon this witness who is positively the man of respondent and carried bias towards the appellant. On this state of affairs, we are led to irresistible conclusion that execution of Exh.P-1 proved by respondent within the requirement of section 16 of the Contract Act."
9. Therefore, with reference to Article 78 of Qanoon-e-Shahadat, 1984, it was 'held that if a document is alleged to be signed or to have been written by any person, the signature or writing must be proved in that person's handwriting, the said Article places emphasis on the proof of identity of author of questioned documents and this Article does not say that mere proof of handwriting/signatures/thumb-impressions of executant will prove truth of the said document.
Reliance in this regard was placed on Madhu Lal v. Asian Assurance Company (AIR 1954 Bom. 305), Bank of Poona v. N.C. Housing Society Ltd. Poona and others (AIR 1968 Born. 106), Hamid Qayyum and others v. Muhammad Azeem and another (PLD 1995 SC 381) Sanaullah and another v.
Muhammad Manzoor and another (PLD 1996 SC 256).
10. The learned Judges after stating above principles of law, held that the appellant had failed to prove both signatures and thumb-impressions of the respondent on documents Exhs. P 1 , P2 and P3, accepted the appeal of respondent, set aside the judgment and decree passed by the trial Court and dismissed the appellant's suit, in the following manner: "8. Guided by the above rules, we herein proceed to assess the evidence of the parties Exh.P1, which is the bed-rock of respondent's claim, was executed on 12-7-1979 and was scribed by Muhammad Azam son of Haji Mahmood Bakhsh resident of Gopalpur, Tehsil and District Multan. Two witnesses namely Khalid 'Hussain resident of Kotla Rahim Ali and Sufi Ghulam Rasool resident of the same village were its witnesses. Amazingly enough, the respondent did not dare to put the above mentioned witnesses in the witness box and face the test of cross-examination. Muhammad Azam was scribe. He was to (sic) resident of Revenue estate Gopalpur; admittedly, he was/is not the petition-writer. In the context of above circumstances, he ought to have been put in the witness- box and prove Exh.P1. As regards the testimony of Khalid Hussain (P.W.1), it is sufficient to say, he is close relative of the respondent. He tried to conceal the circumstances of bitterness between the appellant and her husband and then between the appellant and the respondent. The tilt of this witness towards respondent is evident. He stated that he did not know that Fida Hussain had filed a suit for restitution of conjugal rights against Mst. Wazir Begum; that he was not aware whether the appellant was resident of Gujranwala. Those aspects render his testimony to be without any credit and doubtful and no reliance can be placed on him. The testimony of P.W.4 respondent himself does not improve his case without any supportive evidence in the context of the circumstances noted above. We cannot place much credence on his evidence. Exh.P/2 and P/3 are receipts. Exh.P- 2 was written on 16-10-1979. It was scribed by one Allah Wasaya son of Allah Bakhsh resident of Kotla Rahim Ali and was witnessed by Khalid Hussain and Allah Bakhsh. While Exh.P-3 was written by Muhammad Bakhsh resident of Kotla Rahim Ali. It was witnessed by Malik Hussain Bakhsh and Haji Nazar Muhammad. It is highly painful to note that the scribe and one marginal witness of two receipts were withheld and were not produced before the Court. We have seen Exh.P-2. It carries thumb-impressions of Mst. Wazir Begum which is very dim and not decipherable. Similarly the thumb-impression of Mst. Wazir Begum on Exh.P1 does not tally with her thumb-impression on Exh.P-3. Even the learned counsel for the respondent was not able to contend that thumb impression of appellant on Exh.P1 tallied with her thumb impression on Exh.P3. On this analysis we have no hesitation to say that respondent had failed to prove both signatures and thumb- impression of appellant on Exh.Pl, P2 and P3. This is not end of all. All the three documents were executed in the house of Munir Hussain in Revenue estate Rahim Ali; that they were scribed on plain papers; that no petition-writer was called to write these documents; no stamp was affixed upon them; neither the scribe nor one marginal witness of each document was produced. On these circumstances, we have no option to uphold that these documents were framed in surreptitiousness and had not been proved within the terms of Article 78 of Qanoon-e-Shahadat, 1984.
9. As against this evidence, Mst. Wazir Begum herself appeared in the witness-box. She unequivocally stated that she was resident of Gujranwala; that she had acrimonious relationship with her husband who was step-brother of the respondent; that she had come to Multan to pursue her cases; that she was abducted and kept in illegal confinement by the respondent; that she was set at liberty by the High Court in pursuance of the habeas corpus petition filed by her sister Mst.
Jamila; that she had not executed Exh.P1, P2 and P3 and had not received any consideration at all.
The statement rings true. The respondent had failed to controvert the above version of the appellant and had miserably failed to prove Exh.P1 to P3. We are so not persuaded to sustain the findings of the Court below on issues Nos.5 & 6 and are hereby set aside. The issues are decided in favour of the appellant".
11. We have heard learned counsel for the parties and have also seen record.
12. It is contended by the learned counsel for the appellant that the findings of the trial Court on issues Nos.6 and 7 were correct, that the agreement to sell was executed in the year 1979, the respondent remained silent for more than four years, there is a contradiction in her stand in the written statement and in her statement as DW-1, at one place she stated that 'she was forced to sign on plain papers which might have been converted into Exhs.P1 to P3' and at the other place she stated that she had not signed the above documents, she allegedly remained in an illegal confinement for about one and half year but still did not file any complaint before the police authorities, the allegations with regard to her illegal detention were merely an afterthought just to avoid the effect of Exh.P1 and that the provisions of Article 17(2) of the Qanoon-e-Shahadat, 1984 were not applicable to the documents in question.
13. The learned counsel for the respondent, on the other hand argued that the respondent was a semi-illiterate Parda-observing lady, she was therefore, entitled to the protection under section 16 of the Contract Act, bare reading of Exh.P1 to P3 shows---that they do not indicate that the afore- said documents were read over and explained to her and that she was in possession of independent advice at the time of execution of the said documents, that the agreement to sell (Exh.P1) was on a plain paper, it was scribed by Muhammad Azam and was witnessed by two marginal witnesses namely, Soofi Ghulam Rasool and Khalid Hussain, that neither Muhammad Azam (the scribe) nor Soofi Ghulam Rasool marginal witness, entered the witness-box, Khalid Hussain was close relative of the respondent, he was an interested witness, that Exh.P2 (Receipt dated 16-10-1979) was scribed by Allah Wasaya and was witnessed by Khalid Hussain and Allah Bakhsh, neither Allah Wasaya (the scribe) nor Allah Bakhsh (the witness) were produced, that Exh.P3 (Receipt dated 1-7-1981) was scribed by one Muhammad Bakhsh and witnessed by Malik Hussain Bakhsh and Haji Nazar Muhammad, neither Muhammad Bakhsh (the scribe) nor Haji Nazar Muhammad (the witness) were put in the witness-box, therefore, the execution of documents of Exhs.P1, P2 and P3 were not proved within the terms of Article 17(2) read with Article 79 of the Qanoon-e-Shahadat, 1984, P.W.1 Khalid Hussain, P.W.2 Allah Bakhsh and P.W.3 Malik Hussain Bakhsh were manifestly interested witnesses and were not reliable, that, the documents Exhs. D-1 to D-9 clearly demonstrate that respondent had been kept in illegal confinement for a period of more than one year and during this period instruments Exh.P1 and P2 were fabricated with a clear intention to grab the suit-land which was inherited by the respondent from her father, she is helpless semi-literate Pardanasheen lady and the appellant was in league with her husband with whom the respondent had strained relations, that the so-called last receipt (Exh.P3) of the receipt of Rs,20,000 towards the balance of the sale price, was allegedly executed by the respondent on 1- 7-1981, when she was no more in the confinement of the appellant and had been set at liberty, this clearly demonstrates that this document is also a mere fabrication because it is not believable that with so much previous litigation with the appellant and her husband, the respondent would execute the said receipt, that the controversy in-hand is merely factual in nature, no law point is involved and that the learned Judges of the High Court after going through the entire record and after discussing the entire evidence produced by the parties, vide a detailed judgment, have correctly concluded that the execution of tlocuments Exhs.P1, P2 and P3 have not been proved by the appellant and the appellant's suit has been correctly dismissed.
14. After having heard the learned counsel for the parties at length, it is our firm opinion that the arguments of the learned counsel for the appellant have no force and this appeal has no merit. It has been established on record through evidence and through the entire facts and circumstances taken as a whole that the respondent is a semi-literate Parda-observing female and is entitled to the protection of law governing such ladies, which is by now settled, as discussed by the High Court (mentioned above) and need not be reiterated.
' We may, with convenience, also refer to some of the later judgments of this Court.
' In Amirzada Khan and another v. Itbar Khan and others (2001 SCMR 609), this Court held as follows:- ' It is by now well-established requirement of law that burden of proof in respect of a genuineness of a transaction with a `Pardahnasheen' lady and a document allegedly executed by such a lady lies on the person who claims benefit from the transaction or under the documents. Such a person is legally obliged to prove and satisfy the Court; firstly, that the document was executed by `pardahnasheen' lady and secondly, that she had complete knowledge and full understanding about the contents of the document and thirdly, that she had independent and disinterested advice in the matter before entering into the transaction and executing the document. The evidence on record as discussed by the Appellate Court and the High Court does not satisfy the above standard. The plaintiff failed to prove that at any stage during the proceedings in the mutation any close relation of the vendor-lady was associated.
3. It is also settled principle of law that mere reliance on mutation for certain transaction would not be sufficient for proof of the transaction as covered by the mutation unless some cogent evidence proving the transaction itself irrespective of the mutation is examined in the Court. As the above requirements laid down from time to time for a transaction with Pardahnasheen lady have not been satisfied in this case, therefore, the Appellate and the High Court were correct to refuse to enforce sucha transaction and that rightly concurred in the dismissal of the suit".
In Ghulam Muhammad v. Farooq Ahmed and others (2002 SCMR 1801), it was reiterated by this Court that in the case of illiterate Pardahnasheen lady, Court should be very careful in recording findings as to the execution of any agreement by her.
' Similarly in Khawas Khan through Legal Heirs v. Sabir Hussain Shah and others (2004 SCMR 1259), this Court in regard to a document alleged to have been executed by a Pardahnasheen lady, held:- ' that in case of Pardanasheen lady, the party placing reliance upon the document would have to prove execution of said document that the Pardanasheen lady understood the terms of the deed and the deed was read over and explained to her. This Court has also time and again held that in case of illiterate Pardanasheen lady, it must be shown that deed was read over to her and the terms of the same were adequately explained to her and Court has to be cautious to see that the burden is satisfactorily discharged by the party in whose favour the deed was allegedly executed.
It was necessary for the petitioners/defendants to bring on record that Pardanasheen lady/executant was free and intelligent to execute the deed and Court has to come to definite conclusion that transaction through the deed was understood by her not only from the evidence in the case but also from the facts and circumstances of the case."
It was also held that it would not be sufficient to show that the E document was read over to the Pardanasheen lady but it must further be proved that she understood its nature and effect.
' In Muhammad Tufail and 4 others v. Akbar Ali and 4 others (2004 SCMR 1370), one Mst. Maryam Bibi, the predecessor of respondents, filed a suit challenging the legality of the gift on the ground that she had never made the gift of her share in the land to the sons of her brother and the gift mutation was the result of fraud and misrepresentation. The trial Court came to the conclusion that the factum of valid gift had been proved and dismissed the suit. The First Appellate Court dismissed her appeal. Her revision was, however, accepted by the High Court and the gift was declared to be invalid. This Court dismissed the petition for leave to appeal by holding that the findings recorded by the High Court were in accordance with the law laid down by the superior Courts in respect of the disposal of property by an old illiterate Pardanasheen lady and was also held that: "It has been consistently held that strong proof should be given that she had the advice of her relatives in such-like cases such as husband and sons but the petitioners had failed to prove the same."
It has not been established through evidence that the above-said documents were executed by her or that they were executed by her voluntarily out of her own free-will and that at the time of execution of said documents she had an independent advice of her close male relatives and that the contents of the said documents were read over to her and nature of the transaction was explained to her. The bare perusal of the said documents shows that in this regard, the needful was not done. The onus was on the appellant and he miserably failed to discharge the same. The learned counsel for the appellant has not been able to point out any non-reading of evidence or illegality, in the impugned judgment. We are of the view, that the High Court has drawn correct conclusions from facts found and we are not inclined to interfere merely because the learned counsel for the appellant is of the view that another inference is also possible. The respondent is being continuously victimized and is out of possession of her landed property measuring about 50 acres, inherited by her from her father, for the last 26 years and is suffering because the appellant thought that since she is a helpless female, he can grab her property.
' In view of the above-mentioned, this appeal is dismissed with costs throughout.