' JAWWAD S. KHAWAJA, J.---Thepetitioners/defendants impugn the concurrent decree of the learned trial Court dated 11-6-2004 and of the learned appellate Court dated 19-10-2005 whereby a suit filed by the respondent/plaintiff, namely, Manzoor Ali, seeking specific performance of agreement (Exh.P.1) dated 26-4-1993, has been decreed.
2. Learned counsel for the petitioners has argued that the two marginal, witnesses appearing on the agreement (Exh.P.1) are Juma Khan and Muhammad Yousaf. Juma Khan appeared as P.W.1.
According to his testimony neither Sardaran Bibi (petitioner No,1), nor her children (petitioners Nos.2, 3 and 4) signed or affixed their thumb-impressions on Exh.P.1 in his presence. This fact, according to learned counsel, is by itself sufficient to show that Juma Khan was not an attesting witness. The essential element qualifying an attesting witness to testify as such is that the signatures or thumb-impressions being attested by him have been affixed in his presence.
3. The other marginal witness, namely, Muhammad Yousaf (P.W.3) has claimed that he had obtained a signature of petitioner No,2 and the thumb-impressions of the other petitioners at their residence. In the circumstances, it is contended that bearing in mind the provisions of Article 17 read with Article 79 of the Qanun-e-Shahadat Order, the agreement (Exh.P.1) was not proved.
4. The respondent/plaintiff produced a third witness, namely, Sattar Muhammad as P.W.2. His testimony, however, is of title relevance in this case because neither Juma Khan nor Muhammad Yousaf (P.W.3) have acknowledged his presence when the agreement (Exh.P.1)was executed. On the contrary, both P.W.1 and P.W.3 have expressly deposed that there was no other witness present apart from them. In any event P.W.2 is not an attesting witness.
5. On the above basis, it was argued on behalf of the petitionersthat the suit filed by the respondent/plaintiff was liable to be dismissed and that the learned Courts below had fallen in error while holding that the agreement (Exh.P.1) had been duly proved. To support his contention, learned counsel for the petitioners has relied on the case titled Mst. Kulsoom Bibi and another v.
Muhammad Arif and others (2005 SCM R 135). In the cited precedent the Honourable Supreme Court has observed that the marginal witnesses of a document are produced not merely for the purpose of identifying the signatures of an executant but are also examined to prove that the document in question had been executed within their presence. This precedent supports the arguments advanced on behalf of the petitioners.
6. Learned counsel appearing for the respondent/plaintiff was notin a position to controvert the above submissions. He, however, referred to the case titled Abdul Wali Khan through Legal Heirs and others v. Muhammad Saleh (1998 SCM R 760) and case titled Manzoor Hussain Khan v. Mst.
Asia Begum and 21 others (1990 CLC 1014) to contend that an agreement to sell could even be proved through the testimony of one of the attesting witnesses. These two cases, however, relate to agreements which were executed prior to the promulgation of the Qanune-Shahadat Order. The provisions of Articles 17 and 79 of the said order were not applicable for the said cases. The cited cases, therefore, do not advance the case of the respondent.
7. Learned counsel for the respondent, thereafter, referred to thecase titled Muhammad Sharif v.
Mst. Sardaran Bibi and others (2002 M LD 1002) which was decided on the basis of the two cases titled Abdul Wali Khan through Legal Heirs and others v. Muhammad Saleh (1998 SCM R 760) and case titled Manzoor Hussain Khan v. Mst. Asia Begum and 21 others (1990 CLC 1014) supra. It was not brought to the notice of the learned Bench deciding the case that the earlier two precedents were inapplicable because the agreement therein were executed when the Qanun-e-Shahadat Order was not in force.
8. In any event, the case of Muhammad Sharif v. Mst. Sardaran Bibi supra is distinguishable. In the said. Case, Mst. Sardaran Bibi had filed a suit, inter alia, seeking cancellation of an agreement dated 5-6-1988, alleging that the same was forged and fictitious. The learned Bench considered the evidence of Mst. Sardaran Bibi who appeared as P.W.1 and held that she was not a truthful witness and had not been able to prove her case. It is for this reason that her suit was dismissed.
The case was not one filed by a vendee to enforce an agreement to sell and,as such, there was no necessity for proving the agreement which was in dispute in the said case.
9. In the above circumstances, it is clear that the respondent/plaintiff did not prove the execution of the agreement (Exh.P.1) in accordance with the requirements of the Qanun-e-Shahadat Order. The learned Courts below, therefore, fell in error by holding to the contrary. The impugned decrees are, therefore, not legally sustainable and are set aside. As a consequence, the suit filed by the respondent/plaintiff stands dismissed.