' JAWWAD S. KHAWAJA, J.---The petitioners/defendants impugn the concurrent decrees of the learned trial Court dated 28-9-1998 and of the learned appellate Court dated 12-2-2002, whereby a suit filed by Muhammad Ismail, respondent/plaintiff, seeking specific performance of agreement to sell (Exh.P.1) dated 4-9-1996, has been decreed.
2. The facts of this case are straightforward. The respondent/plaintiff claims the petitioner Hamida Begum had executed Exh. P.1 in his favour after having received Rs,80,000 out of the total agreed consideration of Rs,90,000. According to the plaintiff, the sale-deed was to be executed on or before 25-12-1996. The suit was resisted by Hamida Begum, who denied having executed the agreement (Exh.P.1).
3. Based on the pleadings, six issues, including that of relief, were framed by the trial Court.
However, only issue No,3 is relevant. It was framed by the learned Court in the following terms:- "Whether the disputed sale agreement is forged and fictitious? OPD."
4. Hamida Begum appeared as D.W.3 in her own defence. She in categorical terms, testified that she had not executed Exh.P.1. She also deposed that she was not residing in Ram Kot where the property is situated. The evidence of the P.W.1 also shows that she was married 40 years prior to the filing of the suit to a person in Mailsi. According to her, she only visited Ram Kot on the Chehlum of her brother Muhammad Shafi two and a half years earlier.
5. In the light of the aforesaid testimony, the onus of proving that the agreement (Exh.P.1) had, indeed, been executed by Hamida Begum, shifted onto the respondent/plaintiff. At the very outset, it is relevant to note that, in all, there were four marginal witnesses, namely, Muhammad Ishaq son of Rahmat Ali, Muhammad Ali son of Ali Muhammad, Zafar Ali s/o Rahmat Ali and Safdar Ali son of Akbar Ali. Only Zafar Ali was produced as P.W.3 while the remaining three were not. There is no explanation available on the record as to why they were not produced. The relevance of this omission has been considered below.
6. The learned Courts below, however, have held that Naseer Ahmad, who was scribe of the agreement (Exh.P.1), was qualified to give testimony as an attesting witness, and, therefore, his testimony, coupled with the evidence of Zafar (P.W.3), who was the other marginal witness, would suffice for the purpose of proving the agreement (Exh.P.1).
7. Now, therefore, I consider the testimony of the P. Ws. To start with, it is to be noted that Zafar Ali (P.W.3) did not know Hamida Begum. He stated that Ismail respondent/plaintiff had told him that lady, who executed the agreement (Exh.P.1), was Hamida Begum. In this view of the matter, the testimony of P.W.3 that it was Hamida Begum, who executed Exh.P.1, cannot been accepted. This is particularly so as Zafar Ali was not made to identify Hamida Begum as the lady who affixed her thumb-impression on Exh.P.1. In the circumstances, Zafar Ali could not have been treated as an attesting witness.
8. It is here that the plaintiff's failure to produce any of the three other marginal witnesses mentioned in para.5 above becomes material. The agreement (Exh.P.1) was required by law to be proved through two attesting witnesses. In view of my finding that P.W.3 was not qualified as an attesting witness, the Exh.P.1 cannot be said to have been proved. To add to this, the Courts below ought to have drawn an adverse inference against the plaintiff for his unexplained omission to examine the remaining witnesses of the agreement mentioned above. I also find it surprising that even though the plaintiff took the precaution of arranging four marginal witnesses on Exh.P.1, he did not obtain attestation from the petitioner's nephew (bhatija) who allegedly summoned the scribe.
9. In addition, there are material aspects of the testimony of the P.Ws., which have not been taken note of by the learned Courts below, which undermine their credibility. The plaintiff appeared as P.W.1 and stated that the stamp paper for Exh.P.1 had been purchased by Hamida Begum in his presence. He then contradicted himself by stating that the stamp paper had been purchased prior to the date of the agreement and that Hamida Begum was in possession of the same when she visited his house 2-3 days prior to the agreement. This is a material contradiction in the testimony of the plaintiff.
10. Secondly, according to the plaintiff, the agreement was inscribed by Naseer Ahmad (P.W.2) and that the said Naseer Ahmad was called by the nephew (bhatija) of Hamida Begum. Naseer Ahmad appeared as P.W.2 and stated that he was a farmer. He testified that the stamp paper for the agreement was given to him by Hamidan and one Ashraf. This statement is not, at all, credible -in view of the conflicting testimony of the plaintiff himself and considering that, at one point, the plaintiff categorically deposed that the stamp paper had been purchased by Hamida Begum in his presence. It is also not credible that a person, who was neither a stamp vendor nor a deed writer, had been entrusted with the task of drafting the disputed agreement. This is particularly so in view of the fact that there is nothing on record to show that a deed writer was unavailable.
11. In addition to the above, it is important to note that neither the scribe nor the marginal witnesses, mentioned in the disputed agreement, were family members or close relations of Hamida Begum.
She being an illiterate lady, it was incumbent upon the respondent/plaintiff to ensure that she had received independent advice from a male member of her family before executing the agreement.
There is nothing on record to indicate that this was done. This is a glaring omission in view of the fact that Hamida Begum was married lady and also had children and nephews, but none was involved in the transaction. Even the so-called nephew (bhatija), mentioned by the plaintiff, who allegedly called the scribe, was not asked to sign the agreement as a marginal witness while four outsiders, wholly unrelated to Hamida Begum, were made marginal witnesses.
12.There is yet another aspect of the case, which goes against the respondent/plaintiff. At the appellate stage Hamida Begum applied for additional evidence to have her thumb-impression compared with the thumb-impression appearing on Exh. P.1. This application was allowed and the disputed thumb-impression, together with the thumb- impressions of Hamida Begum taken in Court, were sent to the Finger Print Bureau. The report submitted by the Finger Print Expert was to the effect that the thumb-impression on Exh.P.1 did not match the thumb-impressions obtained in Court. The learned appellate Court, however, discarded the said report on the ground that it had not been proved through the testimony of the Expert.
13. Learned counsel for the petitioners argued, firstly, that the differences in the thumb-impressions are so obvious that even the learned appellate Court could have observed the same with the naked eye. He referred to Article 84(1) and (3) of the Qanun-e-Shahadat Order to state that this is something the Court should have done and had this been done, the forgery in Exh.P.1 would have become clear. This contention is well-founded because even from the enlarge copies of the thumb-impressions placed on record, the disputed thumb-impression does not match the thumb- impressions obtained in Court.
14. Secondly, it was argued on behalf of the petitioners that it was the petitioner Hamida Begum herself, who had applied for the comparison of her thumb-impression. On 8-9-2001, after receipt of the report of the Finger Print Expert in Court, learned counsel for the petitioners had made a statement that the said report was sufficient to prove her case and it was, therefore, not necessary to summon the Expert. The respondent/plaintiff did not make any attempt to challenge the report or to summon the Expert, who had prepared the same. In view of the fact that the petitioner Hamida Begum had denied her thumb-impression on Exh.P.1, it was for the respondent/plaintiff thereafter, to prove to the contrary through affirmative evidence in rebuttal. This, admittedly, was not done.
15. (sic)
16. Finally, I find it exceedingly odd that the respondent had not obtained conveyance of title through the registration of a sale-deed when, according to him, he had paid almost the entire consideration to the petitioner. I, therefore, asked learned counsel to state a reason for this unusual conduct but he failed to give any satisfactory explanation.
17 . Considering the foregoing circumstances, I cannot help concluding that the plaintiff took advantage of the absence of Mst. Hamida Begum and after the death of her brother Muhammad Sahfi, made an attempt to grab the suit-land through a forged agreement. Here I may point out that the two sons of Muhammad Shafi, as per available evidence, had gained employment in Karachi and were living there even prior to the death of their father Muhammad Shafi.
18. Unfortunately, the learned Courts below have not considered the above material aspects of the case. Their decrees, as such, are not legally sustainable. In the circumstances, the impugned decrees of the learned trial Court dated 28-9-1998 and of the learned appellate Court dated 12-2- 2002 are set aside. As result, the suit filed by the respondent/plaintiff is dismissed.
19. The petitioner Hamida Begum shall also be entitled to her costs throughout.