' JAWWAD S. KHAWAJA, J.---The appellants/plaintiffs filed a suit seeking specific performance of an agreement to sell dated 2-8-1984 executed in their favour by Muhammad Sharif predecessor- ininterest of the respondents Nos.1 to 8. The suit was resisted by the said respondents who denied that Muhammad Sharif had executed the said agreement. The learned trial Court framed issues on which the parties led evidence.
2. After considering the evidence the learned trial Court decreed the suit of the appellants/plaintiffs on 21-4-1998. Feeling aggrieved the respondents Nos.1 to 8 filed an appeal which has been allowed by the learned Additional District Judge, Narowal, vide appellate judgment and decree dated 8-11- 1999. Hence, this second appeal.
3. I have gone through the record of the case as well as the judgments of the Courts below. The learned lower appellate Court has primarily non-suited the appellants/ plaintiffs on the ground that only one of the marginal witnesses, namely, Walayat Ali (P.W.6) has been examined by the appellants to prove the agreement. It has been held by the learned lower appellate Court that the Qanun-e-Shahadat Order requires two attesting witnesses for the purpose of proving the agreement. As a consequence, it has been held that the agreement has not been proved. The reasoning of the learned lower appellate Court is fallacious. The agreement to sell is dated 2-8- 1984 while the Qanun-e-Shahadat Order was promulgated in October, 1984. As such, the provisions of the Qanun-eShahadat Order were not applicable to the agreement in question.
4. Walayat Ali (P.W.6) has not only, proved the agreement but has also deposed that consideration was paid to Muhammad Sharif in his presence. The scribe of the agreement has also appeared as P.W.3 and has proved the execution of the agreement by Muhammad Sharif. In the circumstances, the finding of the lower appellate Court that the agreement was not duly proved, being erroneous is set aside.
5. Secondly, I note that the respondents had expressly averred in the written statement that Muhammad Sharif had not executed the agreement to sell. However, when Muhammad Sharif, Finger Print Expert, appeared as P.W.4 and deposed that the thumb-impression on the. Agreement belonged to Muhammad Sharif, the counsel representing the respondents conceded that the thumb-impression did indeed belong to Muhammad Sharif but pleaded that a fraud had been laid upon him by the respondents. This turn around in the stance of the respondents detracts from the veracity of their case.
6. The learned trial Court had considered the above aspect of the case and the evidence on record while decreeing the suit of the appellants/plaintiffs. The learned lower appellate Court has not met the reasoning of the learned trial Court while reversing its findings. Furthermore, as noted above, the learned lower appellate Court has erred in law by holding that it was incumbent upon the appellants to produce both marginal witnesses who were alive to prove the agreement to sell.
7. In view of the above discussion and the error of law committed by the learned lower appellate Court, the impugned appellate decree dated 8-11-1999 is set aside. As a result, the decree of the learned trial Court dated 21-4-1998 stands restored.