' MUHAMMAD SAFDAR KHAN SIKANDARI, J.---Through the instant regular first appeal, the appellant Faizullah has called in question the validity of impugned judgment and decree dated 7-7-2009 passed by learned Additional District Judge-IV D.I. Khan whereby the suit of the appellant for recovery of Rs,60,000 on the basis . Of promissory note dated 15-7-2006 was dismissed.
2. The backdrop of the case in brief is that plaintiff-appellant Faizullah brought a suit against the defendant-respondent Itnran Abbas for recovery of Rs,60,000 on the basis of promissory note dated 15-7-2006 along with 6% interest, counsel fee, court-fee and other miscellaneous charges.
3. The defendant-respondent was summoned by the learned trial Court and after obtaining leave to defend the suit, he submitted written statement denying the allegations contained in the plaint, however, the pleadings of the parties gave rise to the framing of as many as seven issues including the relief. The parties produced pro and contra evidence and after hearing the arguments of learned counsel for the parties, the learned trial Court dismissed the suit of plaintiff-appellant vide impugned judgment and decree dated 7-7-2009 and hence, the instant appeal preferred by plaintiff-appellant.
4. The learned counsel for the appellant contended that the appellant had proved the contents of promissory note by producing the scribe of the deed and a marginal witness and thus, its proof was sufficient according to Qanun-e-Shahadat Order and the production of other marginal witness was not necessary as the witness himself was not willing to give statement in the Court, however, the learned trial Court has wrongly held that non-production of other marginal witness was fatal to the case of the plaintiff-appellant. He further contended that the learned trial Court has misconceived the factual and legal position and has erred in dismissing the suit of the plaintiff-appellant only on the basis of appraisal of evidence of plaintiff-appellant recorded as P.W.2.
3. On the contrary, learned counsel for the defendant-respondent defended the impugned judgment and contended that the burden of proving the promissory note and consideration thereof was on the shoulder of plaintiff-appellant but failed to prove the same by producing two marginal witnesses of the promissory note as required under the law of Qanun-e-Shahadat Order and thus, the learned trial Court was right to non-suit him
6. Viewing the submissions addressed at the bar by counsel for the parties and going through the materials available on record coupled with the authorities of the superior Courts, it is very much evident that the trial Court has elaborated its discussion in the light of evidence recorded mainly on crucial and pivotal" Issue No,4 which reads as follows:- "Whether the pro note in question is forged, fictitious and is not executed by the defendant?"
7. Apparently, the issue referred to above is framed from the averments raised by the defendant in his pleadings firstly, in the application made for the grant of leave to defend under the relevant A provision of Order XXXVII, C.P.C. And secondly, when he submitted his written reply to the parawise claims raised by the plaintiff-appellant in his suit, so, in view of this proposition, the burden lies on the shoulders of the defendant-respondent to prove that the promissory note is forged being not signed by him.
8. In support of claim agitated by the plaintiff-appellant in his plaint, lie produced three witnesses including himself, however, Nasrullah, one of the marginal witness to the promissory note as well as the receipt on the back of the said promissory note duly scribed by P.W.1 Gulzar Ahmad Petition Writer, has not deposed in the Court in spite of the fact that he entered into the witness box. On the other hand, Imran Abbas defendant-respondent and Shah Jehan deposed in the Court in support of defending the plea raised by the defendant-respondent and denied the sanctity of the promissory note and has categorically stated that he has not received the amount of Rs,60,000 from the plaintiff-appellant.
9. Keeping in view the versions put forth by the P.Ws. On one hand and the D.Ws. On the other hand, it will be seen and determined that as to whether the plaintiff-appellant has proved the execution of the promissory note and secondly, whether the amount mentioned above has been paid and delivered to the defendant-respondent or otherwise. So far as the proof regarding the promissory note is concerned, it has admittedly been scribed by P.W.1 and is signed by the defendant- respondent in presence of Nazar Khan, therefore, it is proved that the promissory note has been executed regarding the amount duly witnessed by Nazar Khan. It was argued by the counsel for the defendant-respondent that it is not the promissory note to be proved by the plaintiff-applicant but he will have to prove the receipt reduced into writing on the back of promissory note by providing two witnesses as required under Article 79 of Qanun-e-Shahadat. It is true that in view of 2006 CLD 91 for the attestation of promissory note, there is no requirement of a witness to testify it because under the Negotiable Instruments Act, there is no need of witness to prove it. So far as the requirement of two witnesses for the attestation of the receipt is concerned,' heavy burden was on the plaintiff- appellant to prove beyond reasonable doubt and in this regard, counsel for the defendant-respondent gave reference to a dictum handed down in the case of Maqsood Ali Khan v. M. Tehseen Khan (2003 YLR 1866 Karachi), however, the plaintiff-appellant succeeded and thrown the burden by producing Gulzar Ahmad Petition Writer (P.W.1.) and Nazar Khan (P.W.3.) who are fulfilling the requirements of Article 79 of Qanun-e-Shahadat Order as such like document would be established on the basis of two witnesses but it is immaterial that the other marginal witness namely Nasrullah backed out from his liability earlier performed by him at the time of execution of the promissory note on the receipt. This P.W., as earlier stated, came to the Court and entered the witness box but he refused to take Oath and that is why he was not examined but his statement to this extent on his part, does not indicate this thing that as to whether his signature on the receipt is bogus or he was not present at the time of execution or he is not telling lie about the scribing of the receipt, therefore, his statement plays no role adversely affecting the claim of the plaintiff-appellant.
10. From the issue framed referred to above, it clearly appears that the burden of proof lies on the defendant-respondent to prove and not on the plaintiff-appellant but the trial Court has not given any serious heed to this aspect of the case and has totally discussed the evidence produced by.
The plaintiff-appellant, therefore, in such like circumstances; the defendant-respondent cannot take benefit from the weaknesses of the B statements of the P.Ws. And it is the bounden duty of the defendant-respondent to prove that the promissory note or for that matter, the receipt on its back is forged and bogus but the counsel for the appellant has also agitated the point that the trial Court has not sent the specimen of the signature of the defendant-respondent to the expert/F.S.L.
In the titled case of Hafeez Ahmad v. Sain and others (2003 SCM R 1185) it was held that:-- "Non-sending of thumb impression was not of any legal significance as the document could neither be treated as an agreement to sell nor a will on basis thereof the plaintiff could not claim any declaration of ownership."
' In view of the above legal proposition of the honourable apex Court, the trial Court though was not legally bound to scrutinize the matter of signatures of the defendant-respondent through F.S.L. But lie had the discretion to have made the comparison of the signatures of the defendant- respondent on each document duly signed in Urdu who had totally denied the execution of the promissory note as held in the titled case of Masood Anwar v. Sabir Khan PLD 2006 Pesh.
208.
11. The defendant-respondent has signed the promissory note, the receipt, the application for leave to defend, the surety bond and power of attorney in favour of his Advocate and all these signatures in Urdu tally with one another in true perspective. The trial Court failed to make comparison of the signatures affixed on these documents with the signature of the defendant-respondent nor has ascertained the genuineness of his signatures on these documents but to my mind, I am of the confirmed opinion that all these signatures are of the defendant-respondent.
12. As earlier stated, onus of probandi was on the shoulders of the defendant-respondent to have brought the evidence to establish the plea of alleged forgery of his signatures on the promissory note as well as the receipt one back of it but nothing in this respect has been done by the defendant-respondent either to get the document examined and opined by an expert or to place material on record for comparison and assessment to resolve such controversial question in the trial Court. The defendant-respondent simply stated in his statement that, "I am resident of Kachi Paind Khan D.I. Khan. I have not received the amount of Rs,60,000 from the plaintiff Faizullah; neither I have scribed any pro note in favour of plaintiff. I have seen the Photostat copy of pro note, which has not been signed by me. I have no terms whatsoever with the plaintiff. The plaintiff has instituted a bogus suit for recovery of Rs,60,000 in lieu of pro note, therefore, it is requested that the suit of the plaintiff being bogus, frivolous, be dismissed." He was cross-examined at length by the counsel for the plaintiff appellant. In cross-examination, he admitted his signatures on some of the documents like written statement, surety bond and the power of attorney in favour of his counsel but he straightaway denied from his signatures on the promissory note. Regarding the relations of the defendant-respondent with the plaintiff-appellant, he has answered to a question in cross- examination that he knows the plaintiff only this much that he used to come to the shop of his father. He used to work at the shop of his father. He does not know that- his father had received some loan money from the plaintiff. From the answers given by the defendant-respondent, it clearly infers that, plaintiff-appellant had E frequent intimacy to the shop of father of the defendant-respondent and they have developed cordial relations with one another in connection with the business matter as shopkeepers. Similarly, DW-2 has stated in his statement that he does not know that the defendant had executed any pro note in favour of the plaintiff. The plaintiff had never visited the shop of defendant's father for demanding the loan money. In cross-examination, this DW has categorically stated that he had not seen the plaintiff, therefore, when this DW has not seen the plaintiff, then how he can say that the defendant has not executed any pro note in favour of the plaintiff which is very much astonishing on the part of this witness produced by the defendant-respondent and he badly failed to prove this fact that the pro note scribed by P.W.1. In between the plaintiff-appellant and defendant-respondent is forged and not signed by the defendant-respondent. In the titled case of Muhammad Aslam v. Muhammad Aslam (2006 M LD 599 Lahore) it was held that:-- "O. XXXVII, Rr.2 and 3---Suit for recovery of amount on basis of promissory note--Promissory note in question along With corresponding receipt of amount had been duly proved by plaintiff through two marginal witnesses on promissory note which bore thumb impression and signatures of executants at several places on face of promissory note as well as on its reverse side---Said document having been proved on record, it was for the defendant to have brought evidence to establish Plea of alleged forgery of signatures and thumb, impression on document---Nothing in that respect was done by defendant either to get the document examined and opined by an Expert or to place material on record for comparison and assessment of such question by trial Court itself---Extensive cross examination on behalf of defendant of three witnesses of plaintiff did not contain any. Question for disproving defendant's subscription at Promissory note---Pro note as well as payment of loan amount on basis thereof stood proved on record---In absence of any evidence of alleged fraud, trial Court had rightly rejected allegations made by defendant in his evidence---Judgment of trial Court not suffering from any infirmity or illegality, appeal against said judgment was dismissed."
12. In view of the aforementioned observations, I have been led to the conclusion that the trial Court has fallen into error while misinterpreting and non-reading the evidence produced by the parties and instead of deciding the case on the evidence produced by the defendant-respondent, he has discussed the evidence of the plaintiff-appellant while deciding Issue No,4, therefore, the findings of the trial Court on this issue are not sustainable in the eyes of law.
13. Resultantly, the appeal is accepted, Ate impugned judgment and decree of the trial Court dated 7-7-2009 is set aside and suit of the plaintiff-appellant for recovery of an amount of Rs,60,000 (Rupees sixty thousands) on the basis of promissory note is hereby decreed in his favour, leaving the parties to bear their own costs.