MUHAMMAD ASHRAF BHATTI, J.---Brief Pacts giving rise to this appeal, as narrated in the plaint are, that from one Ghulam Haider, predecessor-in-interest of the appellants, Muhammad Nawaz and 6 others, Baqir Hussain-respondent borrowed a sum of Rs,30,00,000 and got executed a pro note and receipt pro note dated 10-4-1994. Allegedly, the said respondent also got executed separately an agreement in favour of Ghulam Haider on the same date as further proof of receipt of the aforesaid loan money but later, in order to avoid payment, the said respondent got murdered Ghulam Haider, for which he was tried and convicted, which, however, is not subject-matter of the lis under reference. Being legal heirs of the said deceased, the appellants obtained succession certificate from the Court of competent jurisdiction on 17-4-2000 and demanded back the borrowed money from the respondent. In this regard he was also served with a notice dated 31-10- 2000 but of no avail, hence, the appellants filed a suit against him under Order XXXVII, rules 1 and 2, C.P.C. For recovery of Rs,30,00,000 wherein the respondent was granted permission to appear and defend the said suit. In his written statement not only the receipt of Rs,30,00,000 from predecessor- in-interest of the appellants was denied but the very execution of the pro note, receipt pro note and alleged agreement in favour of Ghulam Haider, deceased were also denied.
2. Out of the divergent pleadings of the parties the learned trial Court framed necessary issues and allowed the parties to lead their oral as well documentary evidence. At the end, the learned trial Court after having heard them dismissed the suit of the appellants. Hence, this Regular First Appeal. It has been contested by the other side.
3. We have heard the learned counsel for the parties and perused the record.
4. Broadly speaking on two scores the learned trial Court did not find favour with the arguments advanced on behalf of the appellants i,e, neither the questioned documents i,e, pro note and receipt pro note (Exh.P.3) and Iqrar Nama' (agreement) referred to above, were attested by two witnesses nor consideration thereunder stood proved on record as having been passed on to the respondent Baqir Hussain. After having gone through the relevant law on the subject particularly in relation to the definition of negotiable instrument/promissory, note under reference, we have found that the learned trial Court erred in law in arriving at its findings as to the requirements of two attesting witnesses of promissory note like the one under reference. Let us have a look at the definition of promissory note given under section 4 of the Negotiable Instruments Act which runs as under:-- "Promissory Note. A 'Promissory Note' is an instrument in writing (note being a blank-note or a currency note containing an unconditional undertaking, signed by the maker, to pay (on demand or at a fixed or determinable future time) a certain sum of money only to, or to the order of, a certain person, or the bearer of the instrument."
At this stage reference to the following definition of 'Bond' as given in section 2(5) of the Stamp Act, 1899 would also be beneficial for the proper understanding of difference between the "Promissory Note" and a "Bond":-- "(5) "Bond" includes:--
(a) any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed as the case may be;
(b) any instrument attested by a witness and not payable to order or bearer whereby a person obliges himself to pay money to another; and
(c) any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another."
' A bare perusal of the above mentioned definitions would lead us to understand that a "Promissory Note" is a promise or an undertaking with no conditions attached therewith, duly made by its maker to pay a certain amount on demand on a certain future date to another person or bearer of the said promissory note. If it is signed by a witness also and not payable to a bearer, it becomes a 'Bond'.
5. In a similar situation while drawing the line of demarcation between 'Bond' and 'Promissory Note' the learned Division Bench of this Court at. Multan Bench in the case Aamer Tufail v. Muhammad Sadiq on behalf of his Legal Heirs 2006 CLD 91 held as under:-- "In terms of clauses (b) and (c) of above definition, it is clear that Bond is also a promise made by its maker but to be attested by witnesses, whereas, the definition of Promissory Note as given in Negotiable Instrument Act, though also says that same is a promise by its maker yet does not require that the same be attested by witnesses. We are supported in our view by a Division Bench judgment of Quetta High Court reported in "Mst. Sughran Begum and 11 others v. Haji Mir Qadir Bakhsh and 2 others" PLD 1986 Quetta 232 and have no hesitation in holding that in the absence of requirement of attestation by law i,e, Negotiable Instruments Act, a Promissory Note requires no attestation of witnesses and thus is neither covered by Article 17 of the Qanun-e-Shahadat Order which is a general law nor non-production of at least two witnesses to prove the execution of pro note was fatal for making the same admissible in evidence. The judgment of this Court in `Zaheer- ud-Din Sheikh v. Shatab Khan Nasim NLR 1994 A. C. 661 is also to the same effect."
6. Therefore, in the light of above, we find that the conclusion drawn by the learned trial Court as to necessity of two witnesses for a promissory note cannot be endorsed and as such set aside.
However, in the matter of proof of disputed amount/passing on of consideration, no exception can be given to its findings and the net result thereof would result in dismissal of this appeal.
7. It may be mentioned that promissory note duly executed pre-supposes passing of consideration but this presumption is rebutable. In this case the situation was somewhat different. Indeed what happened was that while getting a promissory note executed on the one hand the parties allegedly also entered into, a separate agreement reference of which was specifically given In the said pro note/receipt pro note (Exh.P.3). That related to F consideration. The entire record when gone through in depth it appears that as a matter of fact no consideration was paid under the promissory note. On the other hand, its payment was allegedly made through an agreement (Exh.P.4). Though both are even dated but it appears that agreement Exh.P.4 was executed prior in time that is whey its reference was later reflected in the pro note/receipt pro note (Exh.P.3) making it clear that consideration, if any, was paid at the time of execution of this agreement. But the appellants have not been able to prove that. Even if the contents of the said agreement are gone through admittedly it was not attested by any witness and merely on its margin the words in vernacular , were specifically written with some understanding that witnesses shall later sign it which did not happen in this case. So, except the parties i,e, deceased Ghulam Haider and Baqir Hussain, respondent the only third witness was the Scribe of this document, namely, Rana Abdul Jabbar who appeared as P.W.3. The said P.W. Did riot at all referred to passing of any consideration to the respondent meaning thereby that no payment, whatsoever, was made in his presence. If that was the position neither the said consideration was paid at the time of the execution of the agreement (Exh.P.4) nor at the time when the promissory note/receipt pro note were executed which followed the execution of the agreement. So, therefore, by all means, the payment of loan money/consideration has not been proved, giving support to its denial by the respondent. In this respect reliance is placed on the case of Mst. Sughran Begum and 11 others v. Haji Mir Qadir Baldish and 2 others PLD 1986 Quetta 232 wherein it was held as under:- "We are inclined to hold that in a suit based on a pro note, once a plaintiff succeeds in proving the execution of the pro note, the burden shifts on the defendants to prove want of consideration in view of the presumption provided under section 118(a) of the Negotiable Instruments Act. We are also inclined to hold that this burden can be discharged either by leading evidence himself or by relying upon evidence of the plaintiff on record, which may be contrary to the presumption in favour of consideration. The Honourable Supreme Court of Pakistan in the above-cited case reported in 1973 SCM R 595 has clearly inter alia laid down that a defendant may rely upon the circumstances of the case and also plaintiffs own statement as regards the consideration."
8. Resultantly, we conclude that not only the respondent successfully rebutted the aforesaid presumption attached to the disputed negotiable instrument as required under the law, but the very payment under the agreement (Exh.P.4) was also not proved by the appellants at the trial.
9. For the reasons noted above, we see no valid justification to interfere with the impugned judgment. The appeal in hand is, therefore, dismissed accordingly. No order as to costs.