' AKHTAR ZAMAN MALGHANI, J:---This revision petition is directed against the judgment and decree dated 10-3-2003 passed by District Judge, Pishin in Civil Appeal No,44/2002 whereby appeal filed by petitioners against the Judgment and Decree dated 29-6-2002 rendered by Civil Judge, Chaman was dismissed.
2. Briefly stated, facts of the case are that the respondents instituted a suit for specific performance against the petitioner on the averments that the petitioner on 15-5-1999 entered into sale agreement with the plaintiffs in respect of his share in the land bearing Khasra Nos.312, 350, 358/1, 359, 360 and 361 situated in Mohal Khushkaba Segi, Mouza and Tappa Segi measuring 239 rods, 26 poles in consideration of Rs,150,000 out of which Rs,100,000 were paid while balance amount was agreed to be paid at the time of mutation in plaintiffs' favour. It is further averred that possession of the land was also handed over to the plaintiffs, however; he delayed the transfer of land on one pretext or the other despite offer of Rs,50,000 and lastly flatly refused. The suit was contested by the petitioner. Execution of agreement was specifically denied and it was stated that the agreement dated 15-5-1999 was a forged and fabricated document. The learned Civil Judge, Chaman in the light of pleadings of parties struck following issues:--
(1) Whether the suit of the plaintiffs is liable to be dismissed in view of the preliminary legal objections "B", "C" and "D"?
(2) Whether the plaintiffs have purchased the suit land through `Iqrarnama' dated 15-5-99 from defendant in consideration of Rs,150,000, out of which defendant has received Rs,100,000?
(3) Whether the plaintiffs are entitled to the relief claimed for?
(4) Relief?
3. The plaintiffs produced three witnesses apart from statement of their attorney Haji Khair Muhammad; whereas petitioner produced four witnesses and also got recorded his own statement. The learned Civil Judge, Chaman vide judgment and decree dated 29-6-2002 decreed the suit. Appeal filed by, petitioner against said judgment and decree was also dismissed by District Judge Pishin vide impugned judgment and decree.
4. I have heard the learned counsel for petitioner as well as learned counsel for respondents.
Learned counsel for petitioner vehemently contended that onus to prove execution of the agreement in view of specific denial by the petitioner was upon respondents but they failed to prove its executions in accordance with law. He further contended that it was essential for the respondents to have produced both the marginal witnesses in view of provisions of Article-79 of Qanun-e-Shandat Order, 1984 but they failed to produce both the witnesses, as such; both the courts below erred in law by decreeing the suit based on such un-proved sale agreement. The learned counsel next argued that reliance of learned trial Court upon the so-called report of handwriting expert without examining said expert was illegal. Similarly the appellate court overruled objection raised by the petitioner's counsel in respect of admissibility of sale agreement on the ground that refusal by the trial Court to summon expert was not challenged further and it had attained finality which conclusion was based on misconception of law as in appeal against the final judgment and decree the appellant could competently challenge non-appealable interlocutory order passed during the trial. He further contended that concurrent findings could be disturbed in revisional jurisdiction, if same were based on misreading of evidence on record or inadmissible evidence. In support of his contentions learned counsel referred to the judgments reported in 1974 SCM R 411, 1983 CLC 657, 2001 SCM R 1700 and 2004 SCM R 595.
' On the other hand learned counsel for respondents vehemently argued that concurrent findings of fact arrived at by the courts below could not be disturbed in revisional jurisdiction. He further contended that the respondents proved their possession over the property in dispute and had also produced one marginal witness whose evidence coupled with expert's report was sufficient to prove execution of agreement. He further contended that opportunity was given to the petitioner to produce expert in evidence on his own expenses but he refused to bear the expenses, as such; the report of expert could not become inadmissible due to non-examination of expert. The learned counsel in support of his arguments placed reliance on the judgments reported in PLD 1994 SC 291 and PLD 1995 SC 381.
5. I have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the judgments/decrees passed by courts below. It may be noted that the respondents have filed suit for specific performance on the basis of Ex. P/1, produced in evidence through P.W.1 Abdul Wali execution whereof was denied by petitioner. According to him the said agreement was a forged and fake document. During trial said document was sent to the handwriting expert along with specimen signatures of petitioner who gave his report concluding that signatures of petitioner over the said agreement were similar to that of specimen signatures.
Both the courts below relied upon the said expert's report despite objections raised by petitioner.
Perusal of said report indicates that no reasons whatsoever have been given by hand writing expert in support of his opinion who has only stated that signatures bearing on `Iqrarnama' Ex. P/1- A are similar to the specimen and routine signatures of Sultan Muhammad. It may be observed that in order to compare different handwritings or signatures, handwriting expert is required to examine different characteristics of both the handwritings or signatures such as pen hold, A pen pressure, slant, speed, sizing, alignment, spacing, line quality, tremors, curves, connections, rhythm, momentum, pulse, position in all letters etc. And if he found similarity in such characteristics then he has to give a positive findings whereas in the instant case the expert has not stated any thing about similarity in characteristics between the questioned signatures and admitted signatures.
Without reasons no weight could be attached to any such report because similarity could be found between traced signatures and admitted signatures. Such reports are of little value as held in PLD 1960 Dacca 897 wherein it was observed as under:-- "The evidence of this witness is not very impressive. He has hardly been able to give good reasons to support his opinion that on comparison of the various specimen signatures he was of opinion that the signatures of the export application forms and the I.R.P. Forms, dated 23rd and 24th of December 1956, were in the hand-writing of the appellant. His evidence is of very little value to us."
6. Article 59 of the Qanun-e-Shandat Order 1984, makes opinion of an expert relevant in evidence but it does not mean that report prepared by expert would be admissible without examination of the said expert. The Hon'ble Supreme Court in the judgment reported in 1974 SCM R 411 held as under:-- "Mr. A.S. Pirzada, learned counsel for the appellants has submitted that this evidence is of no use because the Expert has not been examined in Court. This objection of the learned counsel appears to be well founded. I would, therefore, not take into consideration the report of the Handwriting Expert."
7. Undisputedly the expert who has prepared the report was not examined in the Court and objections taken by the petitioner with regard to inadmissibility of the report were rejected by the Civil Judge, Chaman vide order dated 16-5-2002 including the objection about admissibility of report without examination of concerned expert, instead learned Judge offered the petitioner to bear expenses of the expert which he refused and rightly so, because onus to prove execution of agreement was upon the plaintiffs who relied upon it. It was for the respondents to have proved signatures of the petitioner and execution of Exh. P/1, therefore, if they wanted to take any benefit of expert's report then they should have examined him in Court by summoning him. The appellate Court also erred in law by rejecting objections with regard to admissibility of expert's report on the ground that the order passed by the Civil Judge rejecting objections had attained finality having not been challenged further because petitioner could competently challenge such order in appeal filed against decree as provided under section 105, C.P.C. Report of handwriting expert is not admissible in evidence in view of above discussed legal infirmities, as such; same is kept out of consideration.
8. We are now left with the ocular evidence produced by the respondents in proof of execution of sale agreement. They produced two witnesses i,e, P.W.1 Abdul Ali and P.W.3 Abdul Wadood. Under Article 79 of the Qanun-e-Shahadat Order read with Article 17(2)(a) any document required by law to be attested must be proved by producing attesting witnesses as held by the Hon'ble Supreme Court in the judgment reported in 2007 SCM R 1076. Relevant observations are reproduced herein below:- - "We have considered the submission made by learned counsel for the petitioners and perused the record. It is admitted fact that the petitioners . Had produced only one witness PW.1 Sher Bahadar to prove the execution of agreement Exh. P.I. As evident from para. 9 of the judgment of the Additional District Judge. According to Articles 17 and 79 of Qanun-e-Shahadat Order, 1984 petitioners had to produce two attesting witnesses of the agreement in question. As mentioned above, petitioners had produced only one witness to prove the agreement to sell, therefore, all the Courts below were justified to non-suit the petitioners as law laid down by this Court in various pronouncements."
9. After denial by the petitioner about execution of sale agreement onus was upon the respondents to have produced two attesting witnesses i,e, Abdul Ali and Salah-ud-Din but only one attesting witness namely Abdul Ali was produced. The second witness namely Abdul Wadood produced by the respondents was not attesting witness, as such; could not fulfil requirement of the above referred Articles. Furthermore; perusal of Exh.P/1-A reveals that the said stamp paper was issued by Vendor on 30-6-1994, that too; in favour of un-known person whereas agreement was executed on 15-5-1999 which fact also created doubts in genuineness of said agreement.
10. The onus, as already observed, was upon the respondents to have proved execution of the agreement, on the basis whereof they were seeking performance but they failed to prove its execution in accordance with law, as such; both the courts below erred in law by considering inadmissible document, therefore, judgments and decrees passed by both the courts below on the basis of such inadmissible evidence could not be maintained. As regards arguments of the learned counsel for the respondents about jurisdiction of this Court to disturb concurrent findings of fact in revision, suffice to observe that said rule is not an absolute rule and where it is found that concurrent findings are based on gross misreading, non-reading or misconception of evidence available on record, then this Court is competent to reverse such findings. The Hon'ble Supreme Court in the judgment reported in 2004 SCM R 595 held as under:-- "Having examined all aspects of the matter, we find that no exception could be taken to the conclusions reached by the Honourable High Court which had persuaded the learned Judge in Chamber to set aside the concurrent judgments of the two subordinate Courts. Needless to mention here that there was no absolute rule that the concurrent judgments of the subordinate Courts could never be interfered with by the High Court even if the said judgments were found to be based on gross, misreading, non-reading or misconception of the evidence available on record.
Laying down such a law would have the effect of setting the provisions of section 100 and section 115 of the CPC at naught."
In view of what has been discussed above, I am inclined to set aside the judgments/decree es dated 29-6-2002 and 10-3-2003 passed by Civil Judge, Chaman and District Judge, Pishin respectively. Consequently the suit filed by the respondents is dismissed with no order as to cost.
Decree sheet be drawn accordingly.