' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---This Revision Application is directed against the judgment and decree dated 31-3-1996, and 4-4-1996 respectively, passed by the learned IIIrd Additional District Judge Nawabshah, whereby he allowed Civil Appeal No.45 of 1995, thereby setting aside judgment and decree dated 5-10-1995 and 16-10-1995 respectively, passed by the learned Ilnd Senior Civil Judge Nawabshah dismissing F.C. Suit No.77 of 1985.
2. The relevant facts are that respondent Muhammad Urs filed suit for specific performance of contract cancellation of documents and injunction seeking the following relief:-- "a. Decree for specific performance be passed in favour of the plaintiff, whereby the defendants Nos.1 to 8 to execute and get registered final sale-deed in respect of the suit property in favour of the plaintiff and in case of their failure, the contract be specifically performed by the Honourable Court through the Nazir. b. The sale-deed/transaction in respect of the suit property made by defendants Nos.1 to 8 in favour of defendants No.10 be ordered to be cancelled and such intimation be sent to the Sub- Registrar, Nawabshah, City Surveyor, Nawabshah and other concerned offices for carrying out necessary entries in their record. c. Injunction to issue whereby the defendants be restrained permanently from disturbing the possession of the plaintiff over suit property or alienate it by way of sale, gift, mortgage or in any other mode of transfer to any other person, directly or indirectly, by themselves or through their agents, associates or by any other means. d. The costs of the suit be awarded to the plaintiff against the defendants. e. Any other relief, which the Honourable Court deems fit and equitable in the circumstances of the case be also granted to the plaintiff."
3. It was alleged in the plaint that property bearing Survey No.300/2 admcasuring 29-7 square yards was owned by late Dr. Chaudhry Azizur Rehman, the predecessor of applicants Nos.1 to 8. He entered into an agreement with the plaintiff/respondent Muhammad Urs to sell the suit property to him but a litigation was pending between him and Abdul Qayoom, predecessor-in-interest of respondents No.10(a) to 10(f) before the High Court, therefore, late Dr. Chaudhry Azizur Rehman got executed a rent agreement also from the respondent and presented the same in the High Court.
Due to the execution of two different agreements legal complications arose therefore, in order to avoid the legal complications late Dr. Chaudhry Azizur Rehman executed another agreement to sell on 6-2-1978 in favour of the respondent, making reference to the previous agreements and containing the same terms and conditions. In pursuance of the agreement dated 6-2-1978 the total sale consideration of the suit property was fixed at Rs.12,000, out of which late Dr. Chaudhry Azizur Rehman acknowledged receipt of Rs.10500 from respondent. In pursuance of the sale agreement the possession of the respondent over the suit property was also acknowledged as purchaser. It was stipulated that late Dr. Chaudhry Azizur Rehman will execute and get registered the final sale-deed in respect of the suit property in favour of the respondent on final conclusion of the litigation between him and the predecessor of respondents Nos.l0(a) to 10(f). After taking over the possession of property as purchaser the respondent started running business in the suit property. Late Dr. Chaudhry Azizur Rehman kept the respondent on hopes for execution of the sale- deed but unfortunately he died and could not execute the sale-deed. After his death the respondent approached his successors who also kept him on hopes. The respondent came to know that applicants Nos.1 to 8 in collusion with applicant No.9 sold the suit property to applicant No.10. Whereafter the respondent filed the suit. The defendant/applicant No.10 Abdul Qayoom filed the written statement denying the execution of sale agreement between respondent and late Dr. Chaudhry Azizur Rehman. Rest of the applicants did not file written statement. It was alleged that the agreement dated 6-2-1978 purported to have been executed by late Dr. Chaudhry Azizur Rehman does not bear his signature and was a forged agreement.
4. On the pleadings of the parties the following issues were framed:-- "(1) Whether the predecessor of defendants Nos.1 to 8 had entered into agreement of sale with the plaintiff and received Rs.10,500 from plaintiff towards sale price?
(2) Whether the agreement dated 6-2-1978 is a forged one and does not bear signature of Dr. Azizur Rehman?
(3) Whether the defendant No.9 is tenant of the premises in dispute?
(4) Whether the plaintiff is in possession of the disputed premises? If so in what capacity.
(5) Whether the plaintiff is entitled to the relief sought for?
(6) What should the decree be?
5. The respondent/plaintiff examined himself at trial and produced the agreement dated 6-2-1978 Exh.82 and P.W. Ghulam Qadir Exh.86 and Karim Bux Exh.87. Applicant No.10 Abdul Qayoom examined himself Exh.106 and produced photostat copy of agreement of sale Exh.107, original sale- deed Exh.114 and other documents. He also examined D.W. Karamat Exh.121, D.W. Gul Muhammad alias Gullan Exh.122 (applicant No.9), D.W. Saifur Rehman (one of the legal heirs of late Dr. Chaudhry Azizur Rehman) Exh.125. The learned trial Court dismissed the suit. The respondent preferred appeal bearing No.31 of 1991, which was allowed and the judgment and decree passed by the trial Court were set aside and the suit was remanded to the trial Court with direction to recast the issues while adding the issue regarding limitation and non-maintainability of the suit. On remand the trial Court recasted the issues as follows:-- "(1) Whether the suit is maintainable under law?
(2) Whether the suit is time-barred?
(3) Whether the predecessor of defendants Nos.1 to 8 had entered into agreement of sale with the plaintiff and received Rs.10,500 from plaintiff towards sale price?
(4) Whether the agreement dated 6-2-1978 is a forged one and does not bear signature of Dr. Azizur Rehman?
(5) Whether the defendant No.9 is tenant of the premises in dispute?
(6) Whether the plaintiff is in possession of the disputed premises? If so in what capacity?
(7) Whether the plaintiff is entitled to the relief sought for?
(8) What should the decree be?"
6. The parties did not lead any further evidence and the trial Court decided the above issues as follows:-- "FINDINGS.
1. Issue No.1. Negative.
2. Issue No.2. Affirmative.
3. Issue No.3. Negative
4. Issue No.4. Affirmative.
5. Issue No.5. Affirmative.
6. Issue No.6. Negative
7. Issue No.7. Negative
8. Issue No.S. Suit dismissed with no orders as to costs."
7. The learned trial Court while deciding Issues Nos.3 and 4 observed that the plaintiff/respondent examined himself and produced the sale agreement dated 6-2-1978. It was further observed that P. Ws. Ghulam Qadir and Karim Bux were examined as attesting witnesses. Ghulam Qadir Khaskheli was caste fellow of the' respondent who stated in cross-examination that attesting witnesses were Karim Bux and Ali Nawaz. The learned trial Court held that the respondent was not able to prove the execution of sale agreement by late Dr. Chaudhry Azizur Rehman and consequently held that late Dr. Chaudhry Azizur Rehman did not execute agreement of sale and the document produced was forged.
8. The respondent feeling aggrieved preferred 1st appeal. The learned 1st Appellate Court held that the judgment delivered by the trial Court was not sustainable in law for the reason that joint findings were given on several issues, which were violative of the directions given by the 1st Appellate Court in the first round of litigation. The learned Additional District Judge gave finding on Issues Nos.3 and 4 also, which is mainly the subject-matter of the present revision. The learned 1st Appellate Court decided the Issue No.3 in favour of the respondent/plaintiff for the reason that he examined himself and scribe of the sale agreement as well as attesting witness Karim Bux who have supported hint The issue No.4 was also decided in favour of the respondent/plaintiff on the basis of finding on Issue No.3 and for the reason that the applicant failed to prove that the sale agreement dated 6-2-1978 was forged. The 1st Appellate Court ultimately allowed the appeal, decreed the suit and set aside the judgment and decree passed by the trial Court.
9. Feeling aggrieved the applicants/defendant have filed this revision application. -
10. I have heard Mr. Jhamat Jethanand, learned counsel for the applicants and Mr. Aijaz Ali Hakro, learned counsel for the respondent.
11. Mr. Jhamat Jethanand has mainly argued that the burden of proving the agreement dated 6-2- 1978 lay squarely on the respondent. The depositions of the respondent and his witnesses were recorded on 18-4-1989, after promulgation of the Qanun-e-Shahadat Order, 1984. The law of evidence is adjective/procedural law and has retrospective effect. The sale agreement dated 6-2- 1978 was allegedly signed by two attesting witnesses in addition to the parties and the scribe Ghulam Qadir. Under Article 79 of the Qanun-e-Shahadat Order, 1984 the respondent was required to produce the two attesting witnesses. Both the attesting witnesses were alive but he only examined himself, one attesting witness namely Karim Bux and the scribe Ghulam Qadir, the petition writer. He submitted that after the promulgation of Qanun-eShahadat Order, 1984 in matters pertaining to future obligations if reduced in writing the instrument is required to be attested by two men or one man and two women by virtue of provisions contained in Article 17 of the Qanun-e-Shahadat Order, 1984 and the sale agreement was attested by two witnesses, thus, by virtue of provisions contained in Article 79 of the Qanun-e-Shahadat Order, 1984 the sale agreement could not be used as evidence until two attesting witnesses at least were called for the purpose of proving its execution, if two attesting witnesses were alive and subject to the process of the Court and capable of giving evidence. He further contended that the sale agreement dated 6- 2,1978 is not admissible in evidence at all and, therefore, on the basis thereof the suit could not be decreed.
12. On the other hand Mr. Aijaz Ali Hakro, learned counsel for the respondent has contended that the sale agreement was executed on 6-2-1978 when Qanun-e-Shahadat Order, 1984 was not promulgated. The document was governed by section 68 of the Evidence Act 1872 under which only one attesting witness was required to be called for proving the execution of docunient. He has submitted that the respondent examined himself along with one attesting witness namely Karim Bux as well as scribe Ghulam Qadir. All the witnesses have fully supported the execution of sale agreement dated 6-2-1978 by late Dr. Chaudhry Azizur Rehman. In support of his contention he has placed reliance on various judgments. The first judgment is in the case of Abdul Wali Khan v.
Muhammad Saleh 1998 SCM R 760. In this case a suit filed for specific performance of agreement was dismissed. However, the appeal was accepted by a learned Additional District Judge. A revision application submitted before Sindh High Court Circuit Bench Larkana was dismissed. In the petition for leave to appeal before Honourable Supreme Court, it was contended that there were three marginal witnesses of the disputed agreement of sale out of which one witness only was examined and the other two witnesses were not examined. Regarding the non-production of two marginal witnesses it was observed that the argument was not based on any provision of law. Any of the marginal witnesses, according to law at the relevant time, could prove the execution of a document, provided his evidence was inspiring-confidence. It was held that the Additional District Judge after examining one attesting witness and the plaintiff was satisfied that the same was sufficient to prove the execution of document to which legally no exception could be taken and the petitioners could not insist that unless the two other marginal witnesses were also produced for the evidence, the evidence of third marginal witness could not have been taken into consideration. The Honourable Supreme Court further observed that there was no misreading or non-reading of the evidence and reappraisal of the evidence for arriving at a different conclusion even if there was no concurrent finding, was not to be undertaken. The leave to appeal was refused.
13. The second judgment on which Mr. Aijaz Ali Hakro has placed reliance is in the case of Bashir Ahmed v. Akbar Ali 2005 M LD 283. In this case a suit for specific performance was filed. The learned trial Court allowed the suit for specific performance. In the High Court plea was taken that the sale agreement was not proved and there were two attesting witnesses but only one was examined and no reason was assigned for not examining the other witness. It was contended that according to provisions of Articles 17(2) and 79 of the Qanun-e-Shahadat Order, 1984, in order to prove the document the two witnesses must be examined in the Court;' it was not done and, therefore, the agreement was unenforceable. In rebuttal it was contended that the execution of the disputed document was admitted on record, therefore, the admissibility of the said document or the execution thereof cannot be challenged on the basis of provisions contained in Article 79 of the Qanun-e-Shahadat Order, 1984. It was further contended that in the circumstances of the said case when the agreement was affirmed by one attesting witness and also the scribe the status of scribe does not remain merely that of a deed writer but he becomes a witness to the transaction, payment and execution of the documents. It was held by a Division Bench of Lahore High Court that when the execution of sale, agreement was not denied, the contention that the execution of agreement to sell was not proved, on account of production of only one .Attesting witness instead of two as ordained by Article 79 of the Qanun-e-Shahadat Order,1984, is devoid of force. It was further observed that one attesting witness supported the execution of sale agreement and the scribe who has been examined stated that besides a deed writer, he was also a witness to the transaction, payment and execution of the documents. It was held that in such situation, the scribe can be regarded as an attesting witness. It was further observed that proposition would have been different if a deed writer except scribing the document had no further role to play in the completion of the document i.e., the payment of consideration, in part or in whole or the putting of signatures on the deed by the parties. In this regard support was taken from the view expressed in the judgment reported as Nazir Ahmed v. Muhammad Rafique 1993 CLC 257, Amanat Ali v. Riaz Hussain 1991 M LD 1037 and Zafarullah Khan v. Mst. Hakam Bibi 2000 YLR 2781.
14. Mr. Aijaz Ali Hakro has further placed reliance on a Single Bench judgment of Lahore High Court in the case of Shaukat Ali v. Muhammad Hanif 2004 M LD 1868. While dilating on the contention that under Article 79 of the Qanun-e-Shahadat Order, 1984 two attesting witnesses were required to be produced in Court, it was held that the execution of the sale agreement was admitted and, therefore, one marginal witness and scribe produced at trial proved the document. Reliance was placed in this behalf on the judgment of Honourable Supreme Court in the case of Abdul Wali Khan v. Muhammad Saleh 1998 SCM R 760.
15. Mr. Aijaz Ali Hakro has next placed reliance on another Single Bench judgment of Lahore High Court, in the case of Ghulam Hassan v. Sher Muhammad Khan 2003 M LD 428. It was observed in this judgment that "no doubt,. Under Article 79 of the Qanun-e-Shahadat Order, 1984 execution of document had to be proved by examining the scribe and attesting witness, which, according to the learned counsel, has been done in this case, but the execution of Exh.P.1 and P.2 seems to be doubtful as mentioned in the preceding paragraphs of the judgment".
16. The learned counsel has further referred to another Single Bench judgment of the Lahore High Court in the case of Muhammad Sharif v. Mst. Sardaran Bibi 2002 M LD 1002. In this case a suit was filed for cancellation of agreement to sell. The trial Court dismissed the suit while the Additional District Judge decreed the suit. A revision application was filed contending that the Additional District Judge did not consider the law properly as the Iqrarnama was proved through evidence of marginal witness and the petitioner. The finding of Additional District Judge to the effect that production of one attesting witness was insufficient to prove an agreement to sell/iqrarnama was set aside by placing reliance on the cases of Abdul Wali Khan (supra) and Manzoor Hussain v. Mst.
Asia 1990 CLC 1014. It was contended that the production of attesting witness was not necessary.
The learned Single Judge by placing reliance on the ratio of judgments in the above two cases held that the agreement to sell was not required to be attested by witnesses and that provisions of Article 79 of Qanun-e-Shahadat Order, 1984 cannot be applied to the agreement to .Sell. It was ultimately held that the production of two marginal witnesses or te scribe was not necessary.
17. Mr. Aijaz Ali Hakro has further placed reliance on another Single Bench judgment of Lahore High Court in the case of Amanat Ali v. Riaz Hussain 1991 M LD 1037, wherein the observation made, was, that the execution of a document can be proved by scribe of the document and also by a marginal witness. This is a short judgment in which the elaborate discussion of law is not made and merely an observation has been made as above.
18. The last judgment relied upon by Mr. Aijaz Ali Hakro is in the case of Manzoor Hussain Khan v.
Mst. Asia Begum 1990 CLC 1014. In this case a learned Single Judge of Lahore High Court has considered the provisions contained in Articles 78 and 79 of the Qanun-e-Shahadat Order, 1984. In this case a civil suit for specific performance of an agreement to sell dated 18-11-1975 was filed. This suit was dismissed by the trial Court on 19-12-1983. In appeal the decision was reversed on 19-1- 1985 and the case was remanded 'to trial Court for deciding afresh. This suit was again dismissed by the trial Court for the reason that the agreement to sell was not proved. In appeal the Additional District Judge agreed with the finding and dismissed the appeal. A revision was filed before Lahore High Court. The, learned Single Judge of the Lahore High Court while hearing the revision, observed that thi main question for consideration was whether the agreement to sell was proved. It was observed that the plaintiff's own self-serving statement about sale agreement and payment of sale price was insufficient to advance his case. There were two marginal witnesses and none of them came forward to support the execution. No reason was disclosed for withholding them from the Court. It was further observed that their non-appearance in Court to give evidence, in default of plausible explanation, not given in the case attracted adverse comments. The deed writer was examined but he stated that the parties were not personally known to him. It was held that the solitary statement of the plaintiff in absence of something more was clearly insufficient to prove genuine execution of the agreement to sell. An observation was made in this judgment that the agreement to sell was not required to be attested by the attesting witnesses and in this view, provisions in Article 79 of the Qanun-e-Shahadat Order, 1984 was not applicable. The revision was ultimately dismissed.
19. I have carefully considered the contentions raised by the learned Advocate for the parties and the judgments on which Mr. Aijaz Ali Hakro has placed reliance. Before dwelling on the contentions and the points raised, it would be appropriate to reproduce Articles 17 and 79 of the Qanun-e- Shahadat Order, 1984, which reads as under:- "17. Competence and number of witnesses.----(1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the Injunctions of Islam as laid down in the Holy Quran and Sunnah.
(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law----
(a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and
(b) in all other matters, theCourt may accept, or act on, the testimony of one man or one woman, or such other evidence as the circumstances of the case may warrant.
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 purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
20. Now, I proceed to examine the ratio of judgments on which Mr. Aijaz Ali Hakro has placed reliance. In the case of Manzoor Hussain v. Mst. Asia Begum 1990 CLC 1014 a learned Single Judge of the Lahore High Court after holding that non-examination of the marginal witnesses provided justification for holding that the sale agreement was not proved, made an observation that the agreement to sell was not required to be attested and, therefore, provisions in Article 79 of the Qanun-e-Shahadat Order, 1984 were not attracted. No reasons have been assigned for this observation and with due deference to the learned Single Judge of the Lahore High Court, I am of the opinion that the observation was uncalled for because the sale-deed was executed in the year 1975 and trial was concluded in the year 1983 when the suit was dismissed. Qanun-e-Shahadat Order was promulgated in the year 1984 and, therefore, the case was governed in accordance with the law contained in the Evidence Act 1872.
21. In the next judgment, Amanat Ali. v. Riaz Hussain 1991 M LD 1037, the agreement was executed on 7-6-1984, i.e. Before the promulgation of Qanun-e-Shahadat Order, 1984, which came into force with effect from 28-10-1984, and the evidence was recorded after the promulgation of Qanun-e- Shahadat Order, 1984 as the suit was filed on 22-2-1985. The learned Single Judge though did not specifically deal with the point whether Article 79 of Qanun-e-Shahadat Order, 1984 was attracted or not but from the tenor of the short judgment it appears that provisions contained in Articles 61 and 79 of the Qanun-e-Shahadat Order, 1984 were held to be applicable. However, without any discussion an observation was made that "The document can be proved by the scribe of the document and also by a marginal witness." As observed, the observation is short of any discussion and the provisions of law, therefore, in my humble opinion the observation does not lay down any principle of law of general application and is confined to the particular case, which was decided by the learned Single Judge.
22. In the case of Muhammad Sharif v. Mst. Sardaran Bibi 2002 M LD 1002 a learned Single Judge of Lahore High Court referred to the law laid down by the Honourable Supreme Court in the case of Abdul Wali Khan v. Muhammad Saleh 1998 SCM R 760 and Manzoor Hussain Khan v. Mst. Asia Begum 1990 CLC 1014 and thereafter observed that agreement to sell was not required to be attested by the witnesses and the provision of Article 79 of the Qanun-e-Shahadat Order, 1984 was.
Not applicable to agreement to sell. It was finally held that in view of the above judgments, production of two marginal witnesses or the scribe in the said case was not necessary. In this case the Iqrarnama was reduced to writing on 5-6-1988. As already observed by adverting to the observation made in the case of Manzoor Hussain (Supra) the observation made by the learned Single Judge was uncalled for and thus, cannot be treated as a precedent laying a rule of law. I will presently show that the reliance placed on the law laid down by the Honourable Supreme Court in the case of Abdul Wali Khan (supra) was also misplaced due to misreading of the judgment by Honourable Supreme Court. The observation made in the case of Muhammad Sharif does not amount to laying down a rule of law and, therefore, I am not persuaded to agree with the observation and follow the same.
23. In the case of Ghulam Hussain v. Sher Muhammad Khan 2003 M LD 428, an agreement to sell dated 24-8-1980 was under consideration. The evidence was recorded after promulgation of Qanune-Shahadat Order, 1984 and the learned Single Judge made a similar observation as made by another learned Single Judge of the Lahore High Court in the case of Amanat Ali v. Riaz Hussain that, "no doubt, under Article 79 of the Qanun-e-Shahadat Order,1984 execution of document had to be proved by examining the scribe and attesting witness, which, according to the learned counsel, has been done in this case." After making these observations the dismissal of suit was upheld. With all respects to the learned Single Judges of the Lahore High Court, passing judgments in the cases of Ghulam Hussain (supra) and Amanat Ali (supra), I am of the opinion that the observations have been made without looking into the provisions contained in Article 79 of the Qanune-Shahadat Order, 1984 and consequently, I am not persuaded to agree with view.
24. In the case of Shaukat Ali v. Muhammad Hanif 2004 MLD1868 another learned Single Judge of the Lahore High Court, while considering the contentions that two marginal witnesses were necessary to prove the agreement to sell, while in that case one marginal witness and one scribe were produced, it was held that "further plea that two marginal witnesses were not produced in support of agreement to sell was of no consequence for anyone of marginal witnesses could prove execution of document provided his evidence inspired-confidence." In this regard reliance was placed on the ratio of judgments in the cases of Muhammad Sharif v. Mst. Sardaran Begum (supra) and Abdul Wali Khan v. Muhammad Saleh (supra). I have already held that the observation made in the case of Muhammad Sharif v. Mst. Sardaran Bibi is not in consonance with the law and I will presently show that the ratio of the judgment of the Honourable Supreme Court in the case of Abdul Wali Khan has not been properly followed.
25. In the case of Bashir Ahmed v. Akber Ali 2005 M LD 283 a learned Division Bench of the Lahore High Court held that under Article 79 of the Qanun-e-Shahadat Order, 1984, two attesting witnesses were required to be produced, but it was held that examination of one attesting witness and the scribe of the agreement who besides being a deed writer was also a witness to the transaction, payment and execution.Of the document, was to be regarded as an attesting witness. The position was clarified to the effect that it would have been a different situation if the deed writer except scribing the document had no further role to play in the completion of the transaction i.e. The payment of consideration, in part or in whole or the putting of the signatures on deed by the parties.
26. Now I come to the judgment of Honourable Supreme Court in the case of Abdul Wali Khan v.
Muhammad Saleh 1998 SCM R 760, which has been followed in three Single Bench judgments of the Lahore High Court, discussed earlier, I will show that in all the three judgments the ratio of the Honourable Supreme Court has not been followed correctly. In this case the agreement of sale was executed in the year 1983 and, therefore, Honourable Supreme Court held that as regards non- production of the two marginal witnesses and examination of the one witness only was of no consequence. It was observed that according to the law at the relevant time, any of the marginal witnesses could prove the execution of a document provided his evidence was inspiring confidence. It was further observed that the Additional District Judge after considering the evidence of the plaintiff and one marginal witness was satisfied that the same was sufficient to prove the execution of document to which legally no exception could be taken and the defendant could not insist that unless the other two marginal witnesses had also been produced and examined as witnesses, the evidence of one marginal witness could not be taken into consideration as evidence.
27. It has nowhere been held by the Honourable Supreme Court that there was no requirement of producing two attesting witnesses under Article 79 of the Qanun-e-Shahadat Order, 1984 or in spite of applicability of Article 79 of the Qanun-e-Shahadat Order, 1984 the non-production of the two marginal witnesses in support of agreement to sell was of no consequence and that anyone of the marginal witnesses could prove the execution of the document or that an agreement to sell can be proved without production of two attesting witnesses in the cases where Article 79 of the Qanun-e-Shahadat Order, 1984 was applicable, agreement to sell was not required to be attested by the witnesses and that provisions of Article 79 of Qanun-e-Shahadat Order,1984 cannot be applied to the agreement to sell as held by the three learned Single Judges of the Lahore High Court in the cases of Muhammad Sharif v.
Mst. Sardaran Bibi, Ghulam Muhammad v. Sher Muhammad Khan and Shaukat Ali v. Muhammad Hanif.
28. The judgment of the Honourable Supreme Court in the case of Abdul Wali Khan clearly shows that Honourable Supreme Court decided the case in the light of law as prevailing before the promulgation of Qanun-e-Shahadat Order, 1984 and, therefore, in my humble opinion, there is no justification for applying the rule to the cases covered under Article 79 of the Qanun-e-Shahadat Order, 1984. It cannot be done without doing violence to the law of precedent, which requires that any finding or interpretation in the context of a particular law is not to be applied to the cases in which circumstances are not identical and the provisions of law are different. I am, therefore, not persuaded to agree with any of the judgments delivered by the learned Single Judges of the Lahore High Court on which Mr. Aijaz Ali Hakro has placed reliance. I have already explained that the principle of law enunciated by the Honourable Supreme Court in the case of Abdul Wali Khan is in the context of the provisions contained in the Evidence Act 1872 and the Honourable Supreme Court has not referred to the relevant sections of the Evidence Act, 1872, but I am of the considered view that the Honourable Supreme Court decided the case in the context of the provisions contained in sections 67 and 68 of the Evidence Act, 1872, which read as:-- "67. 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.
68. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court" and capable of giving evidence."
29. I haye come across another Single Bench judgment of Lahore High Court in the case of Muhammad Anwar v. Haji Muhammad Ismail 1992 M LD 860. In this case the document was executed in the year 1967. The evidence was recorded in Court after promulgation of Qanune- Shahadat Order, 1984. It was a rent deed and the tenant denied the execution of deed. A plea was taken that the applicant failed to prove the execution of deed under provisions of Articles 17 and 79 of the Qanun-eShahadat Order,1984. It was contended on behalf of the applicant that Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 were applicable to a document, which had come into existence after 1984. As regards, the document, which existed prior to enforcement of the Qanun-eShahadat Order,1984, the provision of section 68 of Evidence Act were applicable. It was observed by the learned Single Judge that there was considerable force in the argument raised by the applicant's counsel. On facts it was found that the applicant and one attesting witness were examined while the other attesting witness was dead and his signature was identified by his son who was conversant with the signature of his late father. It was held that the document was duly proved and it was not necessary to produce this scribe of the document in Court. It was further held that the contention that the document ought to have been proved in accordance with the provisions of Articles 17 and 79 of Qanun-eShahadat Order, 1984 had no force as the said document had come to existence in the year 1967 and the Qanun-e-Shahadat Order was enforced in the year 1984. It was further observed that even otherwise, under Article 79 of Qanun-e- Shahadat Order, 1984 execution of document has to be produced by the two attesting witnesses, if alive. One marginal witness was examined, the other was dead and the signature were proved through the evidence of his son with the result that there was compliance of the provision contained in Article 79 of the Qanun-e-Shahadat Order, 1984.
30. A perusal of Article 17 read. With Article 79 of the Qanun-eShahadat Order, 1984 shows that under Sub-Article (2) of Article 17 of Qanun-e-Shahadat Order, 1984 in matters pertaining to financial or future obligations if reduced to writing the instrument shall be attested by two men or one man and two women and that such document cannot be used as document until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive and subject to the process of the Court and capable of giving evidence. These provisions are very clear to the effect that so long as there is attesting witness alive, capable of giving evidence and subject to process of the Court, no such document can be used in evidence until witness has been called. The omission to call an attesting witness is fatal to the admissibility of the document.
31. At this juncture, I would like to explain that a combined reading of the provisions contained in Articles 17 and 79 of the Qanun-e- Shahadat Order, 1984 indicates that there are two distinct aspects, which are oftenly lost sight of.
One aspect pertains to the mode in which the transaction may be legally effected. It should be kept distinct from the question as to how the deed embodying the transaction may be proved.
Prior to the promulgation of Qanun-e-Shahadat Order, 1984, there was a requirement under section 68 of the Evidence Act, 1872 that if a document was required to be attested, it shall not be used as evidence until one witness at least was called for the purpose of proving its execution.
However, this provision did not affect in any way the requirement of section 59 of the Transfer of Property Act, that a mortgage deed in order to be followed must be executed in the presence of two attesting witnesses. The result is that after the promulgation of Qanun-e-Shahadat Order, 1984 if a document falls within the ambit of sub-Article (2) of Article 17 of the Qanun-e-Shahadat, 1984 and at the time of recording of evidence in the event of denial of the execution of said document one or both of the witnesses are not alive or are not subject to the process of the Court and the document is not attested by at least two witnesses it shall not be allowed to be used as evidence by proving the document by other modes. It is further necessary that in cases governed under Articles 17 and 79 of the Qanun-e-Shahadat, 1984, it must be proved that two witnesses appended their signatures as attesting witnesses. Mere signature of a person who has not signed the document in the capacity of attesting witness shall not be deemed to be sufficient compliance of the requirement contained in Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984. Mere signature of a person without seeing the actual execution of the deed shall not be treated as attestation of the document. The expression 'attestation' has been defined by section 2 of the Act (XXVII of 1926) Transfer of Property (Amendment) Act as follows:- "Attested,' in relation to an instrument, means attested by two or more witnesses each of whom had seen the executant sign or affix marks to the instrument or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or marks or/and the signature of some other person and each of whom has signed the instrument in presence of the executant; but it shall not be necessary that more than one or such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary."
32. A question arose whether the amended definition of the word attested was retrospective. The Allahabad High Court in the case of Girjanandan v. Hanumandas 1927 A.I. (F.B) and the Calcutta High Court in the case of Nepra v. Sajer Pramanik AIR 1927 Calcutta 763, held that the amendment was not retrospective in effect and the validity of the instrument executed, before the amending Act came into force had still to be decided in accordance with the rule laid down by the Privy Council in the case of Shamu Patter v. Abdul Qadir 16 I.C. 250 (P.C.). Madras High Court, however, took a contrary view and held the amendment to be retrospective in the case of Balaji Singh v.
Chak2 Gongamma AIR 1927 Madras 85. The Legislature had again to step in and by Act X of 1927 and Act XII of 1927 it was clarified that the definition of the word attested in section 2 of Act XXVII of 1926 was retrospective. A Full Bench of the Madras High Court in the case of Veerappa Chettiar v.
Subbrahmanya Ayyar AIR 1929 Madras 1, held that the amendment was retrospective. The Sindh Chief Court also held in the case of Thakurdas v. Topandas AIR 1929 Sindh 217 that the amendment was retrospective.
33. In the light of above discussion and keeping in view the fact that the law of evidence is a procedural/adjective law and every procedural law has the retrospective effect until and unless specified otherwise, it is held that the provisions contained in Articles 17 and 79 of the Qanun- eShahadat Order 1984 are retrospective in effect. At this stage I would like to clarify that in cases where documents have been executed prior to the promulgation of Qanun-e-Shahadat Order, 1984 and evidence to prove such documents has also been recorded prior to the enforcement of Qanun-e-Shahadat Order, 1984, the provisions contained in Articles 17 and 79 of the Qanun-e- Shahadat Order, 1984 shall not be applicable. Such documents, shall be governed by the provisions contained in sections 67 and 68 of the Evidence Act, 1872. As held by the Honourable Supreme Court in the case of Abdul Wali Khan (supra). I would further like to clarify that if a document referred to in sub-Article (2)(a) of Article 17 of the Qanun-e-Shahadat Order, 1984 is executed before the enforcement of Qanun-e-Shahadat Order, 1984 and the execution thereof is not denied, such document shall not be rendered invalid. However, if a document is executed prior to the enforcement of Qanun-e-Shahadat Order, 1984 in the matter pertaining to financial or future obligations including a sale agreement and there are two or more marginal witnesses, the execution whereof is denied and the document is sought to be produced in evidence after the enforcement of Qanun-eShahadat, 1984, the provision contained in Article 79 of the Qanun- eShahadat, 1984 shall be applicable and no such document shall be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive and subject to the process of the Court and capable of giving evidence.
34. After coming to the above conclusion I proceed to examine the question whether a scribe can be called as an attesting witness. This point has been considered by a Division Bench of Lahore High Court in the case of Bashir Ahmed v. Akbar Ali 2005 M LD 283, which has been referred to in the earlier part of the judgment. It has been held that if a scribe besides being a deed writer is also witness to the transaction, payment and execution of the document, he can be regarded as an attesting witness. I am in respectful agreement with the above proposition. The reason being that an attesting witness is one who not only writes or sees a document being executed and appends his name at the end of document, but is a person who also signs it as a witness. However, if it is not shown with reference to the disputed document that the scribe in addition to the writing of document has also acted as an attesting witness, he cannot be treated as such, and his examination at trial as a scribe shall not be sufficient compliance of the requirement contained in Article 79 of the Qanun-e-Shahadat Order, 1984.
35. Now I revert to the facts in the present case. The plaintiff/respondent Muhammad Urs alleged that late Dr. Chaudhry Azizur Rehman agreed to sell the shop and executed the agreement in his favour on 6-2-1978, which he produced as Exh.82. As already narrated the evidence was recorded on 18-4-1989 in order to prove execution of sale agreement Exh.82. The respondent produced P.W.
Abdul Qadir who stated that he was working as petition and bond writer at Nawabshah. He stated that the sale agreement Exh.82 was written by him and contents were read over to the parties, which they admitted to be true and put their respective signatures. He further stated that at that time late Dr. Chaudhry Azizur Rehman received Rs.2000 and admitted to have received the remaining amount at Rs.8500 earlier and Rs.1500 was the balance amount payable at the time of registration of the sale-deed. He also stated that witnesses Karim Bux and Ali Nawaz were present at his shop and they also signed at the very moment when the parties put their signatures. The respondent further examined P.W. Karim Bux. He stated that Dr. Chaudhry Azizur Rehman entered into agreement to sell suit shop with Muhammad Urs. An agreement was written by Ghulam Qadir.
The consideration was Rs.10,000. Rs. 2000 were paid in his presence and Rs.1500 were to be paid at the time of registration of final sale-deed. He stated that Dr. Chaudhry Azizur Rehman, Muhammad Urs and another attesting witness Ali Nawaz also signed in his presence along with him. He stated that Ghulam Qadir also put his signature. A perusal of the sale of agreement Exh.82 shows that the document is allegedly signed by late Dr. Chaudhry Azizur Rehman, respondent Muhammad Urs, witnesses Karim Bux and Ali Nawaz. At the end it is written as follows:-- "Written by Ghulam Qadir P.W. Court Road, Nawabshah."
36. From the perusal of the document, testimony of respondent 1 E Muhammad Urs, P.Ws. Karim Bux and Ghulam Qadir scribe, it is evident that P.W. Ghulam Qadir merely signed as scribe and not as an attesting witness and consequently in view of the criteria laid down by Division Bench of Lahore High Court in case of Bashir Ahmed v. Akbar Ali 2005 M LD 283, on which Mr. Aijaz Ali Hakro has placed reliance and with which, I agree, P.W. Ghulam Qadir cannot be regarded as an attesting witness. It is very clear that he is merely a scribe and has signed the sale agreement as such. He did not sign the sale agreement as an attesting witness in addition to scribe and consequently his evidence does not fulfil the requirement of Article 79 of the Qanun-e-Shahadat Order, 1984. It is not denied that at the time of recording evidence in the trial Court the other witness Ali Nawaz was alive and was subject to the process of the Court. The non-production of attesting witness Ali Nawaz is, therefore, fatal and in accordance with the provisions contained in Article 79 of the Qanun-e-Shahadat Order, 1984 the sale agreement shall not be used as evidence.
37. Consequence to the above finding it is held that the learned IIIrd Additional District Judge Nawabshah has committed illegality by ignoring the provisions contained in Article 79 of the Qanun-e-Shahadat Order, 1984 and the erroneously held that the sale agreement Exh.82 was proved. The judgment and decree passed by the learned Additional District Judge is not sustainable in law and consequently, it is set aside. The judgment and decree of the trial Court dismissing the suit is hereby restored. The revision application is allowed accordingly with no orders as to costs.