' MIAN SAQIB NISAR, J.---Respondents Nos.l to 3, on 27-8-1987, brought a suit for the specific performance against the predecessor-in-interest of appellants Nos.2 to 6 claiming, that the latter through an agreement dated 25-6-1987 had agreed to sell the suit-land measuring 17 Kanals and 16 Marlas to them for a total consideration of Rs,50,000, out of which Rs,40,000 was paid to him and on the payment of the balance consideration of Rs,10,000 he was obliged to finalize the sale in favour of the said respondents, but he did not do the needful, constraining the respondents to bring a suit. It may be pertinent to state here that during the pendency of the suit, the suit-land was sold in favour of defendants Nos.3 and 4 and thus, they were accordingly impleaded as a party. Be that as it may, the predecessor of appellants Nos.2 to 6 took up the defence that the agreement to sell is forged; he had never received the consideration amount and the transaction as alleged is fraudulent. Whereas, defendants Nos.3 and 4 set out the defence that they are the bona fide purchasers of the suit property without notice of any agreement to sell.
2. On the basis of the pleadings of the parties, the issues were framed and the important are:--
(2) Whether the agreement dated 25-6-1987 is a result of fraud, collusion and misrepresentation?
OPD.
(3) Whether the defendants Nos.3 and 4 are bona fide purchasers of the disputed land? OPD.
(7) Whether the defendant No,1 entered into an agreement to sell dated 25-6-1987 to sell the disputed land to the plaintiffs? OPD.
3. In order to prove the valid execution of the agreement to sell, the respondents produced P.W.1 Syed Afzal Hussain Naqvi, Advocate, who states that he drafted the agreement (Exh.P.1) and that the parties have signed the document in his presence. P.W.2 Malik Muzafar Ali Sadiq is the marginal witness of the document and has supported the case of the plaintiffs, whereas P.W.3 Barkat Ali is one of the plaintiffs. As against the above, the appellants examined D.W.1 Noor Muhammad and D.W.2 Umair Khan and D.W.3 is the Handwriting Expert, who in his report has stated that the signatures of the appellants' predecessor on the disputed agreement does not tally with his admitted signatures.
4. Be that as it may, on the conclusion of the trial, the learned Civil Judge was pleased to dismiss the suit, vide judgment and decree dated 12-11-1995. Aggrieved of the above, respondents Nos.1 to 3 preferred an appeal, which has been accepted on 11-1-2001 and it has been held by the learned Appellate Court that the agreement to sell is proved to have been validly executed. But concerning defendants Nos.3 and 4, it is concluded that they are not the bona fide purchasers.
5. Learned counsel for the appellants has argued that Exh.P.1 has not been proved in accordance with law; Syed Afzal Hussain Naqvi is not the professional deed-writer; though he is an Advocate, but has not maintained any record about Exh.P.1; he has also not stated as to what was the sale price and that if it was paid in his presence by respondents Nos.1 to 3 to the predecessor-in- interest of the appellants; he also has not been able to state if the document was read over to the appellants' predecessor before it was allegedly executed by him; same is the case vis-a-vis the P.W.2. It is further argued that the document has not been attested by two witnesses as required by the provisions of Article 17(2) and Article 79 of the Qanun-e-Shahadat Order; thus, in such circumstances, the agreement was absolutely unenforceable and has been erroneously enforced by the learned Court of appeal.
6. Heard. According to the provisions of Article 17(2)(a) of the 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, so that one may remind the other, if necessary, and evidence shall be led accordingly".
7. From the perusal of the agreement to sell (Exh.P.1), it reveals that it is attested only by one witness namely Malik Muzaffar Ali Sadiq, Advocate, Kasur. Syed Afzal Hussain Naqvi, Advocate though has signed the document, but he is shown to be the scribe, therefore, he is not an attesting witness, as is required under Article 17(2) of the Qanune-Shahadat Order. According to the large number of the judgments, it has been held that where a instrument is liable to be attested by two male witnesses and is lacking in this behalf, is not the instrument in accordance with law and the legal rights and obligations on the basis of such instrument cannot be based. In this behalf, reference is made to a judgment reported as Suleman Ali v. Maqbool Hussain through Legal Heirs and 2 others (2000 YLR 1983) (Division Bench Judgment), as under:-- "Art.79--Execution of document required by law to be attested-Proof--Where a document was required to be attested factum of non-production of attesting witness under Art.79 of Qanun- eShahadat Order, 1984 was fatal."
' In Abdul Khaliq v. Muhammad Asghar Khan and 2 others (PLD 1996 Lah. 367), while considering the collective effect of Articles 17 and 79, the law laid down is:-- "Agreement to sell being instrument pertaining to financial or future obligations, and having been rendered into writing, same was required to be attested by two men or one man and two women.
Such document would not be used in evidence unless at least two attesting witnesses were examined for such purpose."
' In the judgment reported as Altaf Hussain Shah v. Nazar Hussain Shah (2001 YLR 1967), the same view has been expressed with the additional enunciation of the law, that a scribe of a document is not an attesting witness, particularly when the scribe has not entered a document in the register required to be maintained by the Deed Writers, his statement would have no evidentiary value.
8. Resultantly, the plea of the learned counsel for the respondents, that because Syed Afzal Hussain Naqvi, who had scribed the document and has appeared to testify about the same, should be considered as second attesting witness with the consequences that the requirements of Article 17(2)(a) read with Article 79 are fulfilled, is absolutely misconceived. Therefore, I am constrained to hold that the agreement to sell (Exh.P.1) was not attested by two witnesses and, therefore, was not a valid contract, which could be enforced by the Court, besides, it has also not been proved as per the requirements of section 79 of the Qanune-Shahadat Order, 1984.
' In the light of above, by allowing this appeal, the impugned judgment and decree of the learned Court of appeal is set aside with the result that the judgment and decree of the learned trial Court is upheld, and the suit of the respondents stands dismissed.