' ANWAR ZAHEER JAMALI, J.--By this Civil Revision Application under section 115 C.P.C, applicant Muhammad Aslam has challenged the judgment and decree, dated 16-3-2007 and 17-3-2007 respectively, in Civil Appeal No,3 of 2006, passed by learned IInd Additional District Judge Dadu, whereby the said appeal was allowed and consequently the judgment and decree in F.C. Suit No,39 of 2003, passed by the Court of Senior. Civil Judge Dadu in favour of the applicant was set aside and his suit was dismissed.
2. Briefly stated, relevant facts of the case are that on 2-6-2003 applicant had brought a suit for specific performance of contract and permanent injunction against the respondents Nos.1 to 5 in respect of agricultural land bearing Survey No,295/1, 3, 4 263/3 and 296/1,4, total admeasuring 9-26 acres, situated in Deh Taga, Taluka Dadu (hereinafter referred to as the "suit land"). According to the applicant, respondents Nos.1 and 2, being owners of the suit-land, have agreed to sale it to him for a total sale consideration of. Rs,3,13,000 out of which Rs,1,92,000 were paid to them at the time of execution of sale agreement, dated 31-1-2002 while the balance amount of Rs,1,21,000 was paid to them on 11-3-2003 for which a separate receipt was executed by them in favour of the applicant.
Further case of the applicant was that the respondents Nos.1 and 2 had also executed a power of attorney in his favour on 11-3-2003; which even contained the power to sale the suit-land, but later on they changed their mind and refused to execute the sale-deed, which necessitated filing of the suit.
3. On service of summons in the suit, respondents Nos.1 and 2 submitted their written statement before the Court on 11-9-2003, wherein they vehemently denied any transaction of sale between them and the applicant. Their case was that the sale agreement; receipt regarding the payment of alleged sale consideration; and the power of attorney purportedly executed by them in favour of applicant were all forged and fabricated documents, as neither they have received any sale consideration from, the applicant nor any such documents were, executed by them in his favour.
Further case of respondents Nos.1 and 2 was that they had given the suit-land on "Mukata" for one year to one Manzoor Ali in the year 1998, who had played such drama to cheat them, for which complaints have also been made to various authorities.
4. , During the proceedings before the Court of Senior Civil Judge Dadu, seven issues were framed in the suit and at the stage of evidence, from the side of the applicant, he examined himself as Exh.35 and produced documents Exhs.35/A and 35/B, besides examining two other witnesses Muhammad Hashim (Exh.36) and Ahmed Khan (Exh.37). From the side of respondents Nos.1 and 2, respondent No,1 examined himself as Exh.39 and thereafter their side was closed.
5. Learned Senior Civil Judge Dadu at the time of passing the judgment and decree in the suit recorded his findings on issues Nos.1 to 4 in the affirmative and Issue No,6 in the negative and consequently decreed the suit of the applicant against the respondents.
6. In the appeal preferred by respondents Nos.1 and 2, the learned Appellate Court vide its judgment, dated 16-3-2007 came to the conclusion that the execution of sale agreement and payment of sale consideration were not proved by the applicant in accordance with law, therefore, the Lower Court committed illegality in decreeing his suit. As a result of such conclusion the judgment and decree passed by the Court of Senior Civil Judge Dadu were set aside and suit of the applicant was dismissed.
7. Mr. Abdul Latif Bhatti, learned counsel for the applicant has vehemently argued that in their written statement submitted by respondents Nos.1 and 2, there was no specific denial about the execution of sale agreement, dated 31-1-2002, and the payment receipt, dated 11-3-2002 with general power of attorney of the same date in favour of applicant, therefore. The suit of the applicant was rightly decreed due to such evasive denials in the pleadings, coupled with, the nonappearance of respondent No,2 in the witness box. In this context he placed reliance upon the case of Hakim-ud-Din v. Faiz Bakhsh (2007 SCM R 870), where in it was held that averments made in the pleadings would not carry weight, unless. Proved through evidence or admitted by the opposite party, as pleadings are neither substantive evidence nor substitute of evidence. He next contended that in the given facts and circumstances of the case non-examination of other marginal witnesses or scribe of the sale agreement and the receipt was not fatal to the case of the applicant as held by Honourable Supreme Court of Pakistan in the case of Abdul Wali Khan v.
Muhammad Saleh (1998 SCM R 760). From the brief facts noted in this judgment it seems that it was a case where at the time of execution of sale agreement between the parties the provisions of section 68 of the Evidence Act were in force, which contained requirement of examination of one marginal/attesting witness of the document to prove its execution, and it was in this background that it was observed by the Apex Court that non-examination of other marginal witnesses of the agreement, which required attestation, was of no consequence.
8. I have carefully considered the submissions of the learned counsel and perused the material placed on record which goes to show that in their written statement filed in the suit, the respondents Nos.1 and 2 have categorically denied the execution of sale agreement, dated 31-1- 2002, payment receipt, dated 11-3-2002 and the power of attorney which were allegedly executed by them in favour of the applicant, and in evidence these facts were fully affirmed on oath by the Respondent No,1, who was also special attorney of respondent No,2. In such circumstances the submissions of -the learned counsel that the denial of such assertions of the applicant in the plaint, from the side of respondents Nos.1 and 2 in their written statement was evasive are misconceived. Moreso, as the averments made in the written statement (pleadings) are to be read as a whole and not in piecemeal and from the reading of whole of the written statement it is palpably clear that the respondents Nos.1 and 2 have strongly denied the claim of the appellant regarding the execution of sale agreement; payment of any amount to them towards sale consideration of the suit-land and the execution of power of attorney by them in favour of appellant Muhammad Aslam son of Ali Muhammad.
9. Besides, in this case it is an admitted position that for no valid reason the applicant had failed to examine the other marginal witnesses of the alleged sale agreement, dated 3-1-2002, as contemplated under Article 79 of the Qanun-e-Shahadat 13 Order 1984, which reads as under:-- "79. Proof of document required by law to be attested.---If a document is required by law to be attested, it shall not be used as, evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence: ' Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
10. From the bare reading of the above provision of Qanun-e-Shahadat Order 1984 and the evidence led by the applicant before the Lower Court it is evident that no explanation whatsoever was offered by him for non-examination of other marginal witness Haji son of Noor Muhammad Qureshi, who was one of the attesting witnesses of both the documents Exhs.35/A and 35/B, or even the scribe of sale agreement and the payment receipt purportedly executed by the respondents Nos.1 and 2. Not only this but the attesting witness of these documents (Exhs.35/A and 35/B) Muhammad Hashim, when examined in Court was also not confronted with these documents nor he had anywhere deposed that the sale agreement and the payment receipt were executed by the Respondents Nos.1 and 2 in his presence or these documents bear their signatures.
11. At this juncture it will be pertinent to mention here that in the present case purported sale agreement and the payment receipt were allegedly executed, by respondents Nos.1 and 2 on 30-1- 2002 and 11-3-2002 respectively," when the provisions of Article 79 of the Qanun-e-Shahadat Order, 1984 regarding "proof of execution of document required by law to be attested" were in the field, therefore, ratio of judgment in the case of Abdul Wali Khan (Supra) as discussed above, is of no help to the case of applicant. It is so, as Article 79 of the Qanun-e-Shahadat Order, 1984, though corresponds with section 68 of the repealed Evidence Act, 1872, but with the difference that under section 68 even the evidence of only one attesting witness could prove the execution of a document required by law to be attested, while under section 79, as per requirement of Islamic jurisprudence, evidence of atleast two attesting witnesses is necessary to prove its execution. This legal position is further amplified from the case of Mst. Kalsoom Bibi v. Muhammad Arif and others (2005 SCM R 135). Relevant observations read as under:-- ' "Marginal witnesses of a document are produced not merely to identify the signatures of an executant but are examined to prove, in addition to the above fact, that the executant had put the signature within their view."
12. In the facts and circumstances of the case it also seems improbable and doubtful that a party who had agreed to purchase the suit-land from the respondents Nos.1 and 2 for a total sale consideration of Rs,3,13,000 will opt to make the payment of total sale consideration amount to them in cash, instead of some financial instruments like cheque, pay order or demand draft, so as to have a solid proof of such payment to the seller of the suit-land.
13. On the other hand, the case of respondents Nos.1 and 2, as visible from their pleadings was that the suit-land was leased out by them to one Manzoor Ali son of Muhammad Ali Arain (bRother-in- law of the applicant, as disclosed by witness Ahmed Khan) in the year, 1998 for one F year and thereafter the whole game of fraud and cheating was played by the applicant in league with him, and these assertions were categorically made and affirmed by the respondent No,1 in his deposition, being also attorney of respondent No,2, but not disputed by the opposite party.
14. The perusal of impugned judgment and decree passed by the Appellate Court reveals that all the substantial and material factual and legal aspects of the case have been Carefully considered and rightly answered by the Appellate Court in its impugned judgment, dated 16-3-2007. Therefore, there is no valid justification for this Court to interfere with such findings of fact recorded by the Appellate Court. It may be added here that mere fact that the judgment of the two Lower Courts are conflicting or on the basis of evidence available on record another conclusion, different from the one recorded by the Appellate Court, is possible will not justify interference in the judgment of the Appellate Court by the Revisional Court, and in case of conflict in the findings of fact recorded by the Lower Court and the Appellate Court, preference is to be given to the findings of the Appellate Court, unless the same are perverse, arbitrary or based on no evidence. If any case-law is needed to fortify this view reference to the cases of Abdul Wali Khan (Supra) and Hakim-ud-Din and others (Supra) referred by Mr. Abdul Latif Bhatti will be useful.
15. This being the position, this Revision Application is dismissed in limine along with listed applications.