' FAQIR MUHAMMAD KHOKHAR, J.--- This appeal calls in question the validity of judgment and decree dated 19th October 1999 passed by a learned Division Bench of the Lahore High Court, Lahore in R.F.A. No,268 of 1993 whereby judgment and decree dated 21st November, 1993 passed by the trial Court was reversed.
2. The appellants instituted, in the Court of Senior Civil Judge, Jhang, a suit against the respondents, for specific performance of sale agreement, dated 6th June, 1984 (Exh.P.1). It was averred in the plaint that the respondents had agreed to sell the suit-land measuring 66 Kanals and 13 Marlas being 1/3rd share of the total land measuring 200 Kanals. It was stipulated that sale- deed would be executive and registered after grant of proprietary rights of the suit-land by the Colonies Department. The entire sale consideration of Rs,3,00,000 was paid at the time of agreement. The respondents were conferred proprietary rights of the suit-land on 8th January, 1986 but they refused to execute the sale-deed. The suit was contested by the respondents wherein the very execution of sale agreement dated 6th June, 1984 was not specifically admitted by them. They took the plea that appellant No,1 was a "Peer" and Syed Mumtaz Hussain and Syed Manzoor Hussain Shah were his close relatives. They further stated that Karam, the brother-in-law of respondent No,2 and his sister Mst. Jandan and another relative namely Ahmed were deciples of appellant No,1 Syed Mumtaz Hussain Shah, an employee of the Agriculture Department, being in league with the appellants obtained signatures and thumb-impressions of the respondents on blank papers along with photocopies of their national identity cards on the pretext of getting agricultural loan from a Cooperative Society. On divergent pleadings, the trial Court framed as many as eight issues and recorded oral as well as documentary evidence of the parties. The trial Court, by judgment dated 21st November, 1993 decreed the suit of the appellants. Therefore, the respondents preferred R.F.A. No,268 of 1993 in the Lahore High Court, Lahore which was accepted by the impugned judgment and decree dated 19th October, 1999 whereby the suit of' the appellants was dismissed. Hence this appeal under Article 185(2)(d) of the Constitution of Islamic Republic of Pakistan by the appellants.
3. The learned counsel for the appellants submitted that execution of sale agreement (Exh.P.l) and receipt of consideration amount (Exh.P.2) by the respondents was duly proved by producing marginal witnesses, Stamp Vendor and the scribe, Shamim Ahmed Khan P.W.1 The stamp vendor was not related to the appellants. Therefore, his evidence could not be discarded by the High Court merely for non-production of stamp vending register. His explanation that the same had already been deposited with the Authorities concerned was not taken into consideration. The signatures and thumb-impressions on Exhs.P.1 and P.2 were not specifically denied by the respondents who rather admitted their execution impliedly.
4. On the other hand the learned counsel for the respondents argued that the impugned judgment of the High Court did not suffer from any error of misreading or non-reading of evidence on record.
The Stamp Vendor, Shamim Ahmed Khan P.W.1. Did not obtain the signature and thumb- impression of the person who had purchased the stamp paper from him as required by the Stamp Rules and that he was also involved in criminal cases of forgery in respect of his stamp vending business. An inquiry was also pending against him. The entries on the back of the stamp paper (Exh.P.1) showing the sale of the same for the purpose of execution of the sale agreement was an afterthought and the same were forged and fictitious. The production of original Stamp Vending Register was deliberately withheld. It was next contended that there were interpolations and cuttings in the entries at the back of Exh.P.1 which gave the impression that the stamp paper was purchased for agreement in favor of one Ghulam Haider. Therefore, the word (URDU TEXT) in between the words (URDU TEXT) was crossed and an additional line was introduced. Even the Deed Writer P.W.2 frankly admitted that he did not know the respondents personally at the time of drafting the questioned documents. Anyhow, P.W.2 also admitted that no consideration amount was paid in his presence. Not only that the alleged thumb-impressions and signatures of the respondents appearing twice on Exh.P.1 also showed that the same was the result of fraud and forgery. P.W.3 Manzoor Hussain also admitted that P.W.4 Mumtaz Hussain Shah was his nephew and brother-in-law of the appellants who were also maternal and paternal brothers. It was also proved that Mumtaz Hussain Shah P.W.4 was employed in Agriculture Department at Jhang.
Neither execution of sale agreement Exh.P.1 nor the receipt of payment Exh.P.2 was proved to have taken place at the house of Manzoor Hussain Shah P.W.3 at the time of alleged payment. No evidence was produced by the appellants to show that foreign currency of Kuwati Dinars was brought to Pakistan by Syed Shamsheer Ali Shah the appellant No,2. The learned counsel lastly submitted that the view taken by the High Court based on proper appreciation of evidence was plainly correct to which no exception can be taken.
5. We have heard the learned counsel for the parties at length and have also gone through the available record. We find that despite lengthy cross-examination of P.W.1, P.W.2 and P.W.6, no material discrepancy in their statements could be culled out. All these witnesses remained consistent and coherent in their confidence-inspiring deposition before the Court. The non- production of the register of stamp vending by P.W.1 was satisfactorily explained by him that the same had been deposited with the Authorities concerned. The execution of the sale agreement Exh.P.1 and receipt Exh.P.2 was not specifically denied by the respondents neither in their written statement nor in their evidence before the trial Court. The execution of the same was, in a way, admitted by them who took the plea that their signatures and thumb-impressions were obtained on blank papers by Syed Mumtaz Hussain Shah. Not only that Muhammad Yousaf D.W.3 when confronted about his signatures on A Exh.P.1 and Exh.P.2 gave an evasive answer by stating that his Lye-sight was weak and that he could not see his signatures thereon. The fact remains that the appellants had duly proved the execution of sale agreement dated 6th June, 1984 (Exh.P.1) as well as the receipt (Exh.P.2) of the payment of entire consideration amount of Rs,3,00,000 by producing the Stamp Vendor Shamim Ahmed Khan P.W.1, the Deed Writer Muhammad Iqbal P.W.2 the attesting marginal witnesses of Exh.P.1 Syed Manzoor Hussain P.W.3 and Syed Mumtaz Hussain Shah P.W.4. In addition, the appellant No,2 Syed Shamsheer Ali also appeared as P.W.6. Mere involvement of the Stamp Vendor in a criminal case was not sufficient to discard his evidence. The appellants had discharged their onus of proof of execution of Exh.P.1 and Exh.P.2. Therefore, it was for the respondents to dislodge the same by getting A their signatures and thumb-impressions compared by the Court or through the Handwriting/Fingerprint Experts. In our view, the learned Judges in the Chambers of the High Court did not take into consideration the evidence led by the parties in juxta-position and in its proper perspective which was misread. The impugned judgment is not sustainable at law.
6. For the foregoing reasons, this appeal is allowed with costs. The impugned judgment dated 19th October, 1999 of the Lahore High Court, Lahore is set aside. Consequently, the judgment and decree dated 21st November, 1993 of the Senior Civil Judge, Jhang are restored.