1. ORDERE CH. MUHAMMAD MASOOD JAHANGIR, J.--- By means of this Civil Revision filed under section 115, C.P.C., the petitioner-plaintiff has challenged the judgment and decree dated 23-6-2009 passed by the learned Civil Judge, Gojra whereby the suit filed by the petitioner-plaintiff for specific performance of the agreement of sale was dismissed as well as the judgment and decree dated 13-3-2012 passed by the learned Additional District Judge, Gojra whereby the appeal filed by the petitioner-plaintiff was partialy allowed in consequence whereof the suit was partially decreed to the extent of Ghulam Muhammad deceased, who is succeeded by respondents Nos.3 to 26 and partially dismissed to the extent of Rehmat Bibi, who is succeeded by the respondents at Nos.1 and 2 as a result of which the judgment and decree of the learned trial court regarding dismissal of suit to the extent of Rehmat Bibi was maintained.
2. 2.The precise facts are that the petitioner filed a suit for specific performance of agreement to sell about the land measuring 6.M, 12 S.ft (fully described in the head note of the plaint) and herein after to be referred as "disputed Ihata" alleging therein that Mst. Rehmat Bibi and Ghulam Muhammad being owners in possession of the disputed Ihata had agreed to sell it to the petitioner for a sum of Rs.30,000, who were paid the earnest money amounting to R.6300 and agreement dated 25-8-1981 was reduced into writing. The petitioner shifted to the disputed Ihata after incurring a huge amount over its construction and he also paid Rs.20,300 to the vendors or different occasions, who also executed the agreements dated 7-11-1981, 25-5-1982 and 1-10-1986 and the balance amount was settled to be paid at the time of execution of registered sale deed.
3. However, Ghulam Muhammad died after some months whereupon his legal heirs as well as Mst.
4. Rehmat Bibi were asked that the sale deed be got completed after receiving the balance amount, who refused to perform their part, which necessitated filing of the instant suit by the petitioner.
5. 3.The suit was contested by the respondents-defendants by filing the written statement and out of the divergent pleadings of the parties as many as 8 issues were framed. Both the parties led their evidence in support of their respective contentions and the learned courts below decided the fate of the suit as well as the appeal filed by the petitioner as indicated in para 1 ante. Hence this Civil Revision has been filed before this court.
6. 4.The learned counsel for the petitioner-plaintiff contends that the learned appellant court has erred in law while partially dismissing the suit to the extent of Mst. Rehmat Bibi and omitted to take into consideration that the first agreement dated 25-8-1981 (Exh.P.2) had been signed by both Rehmat Bibi and Ghulam Muhammad, which was proved by producing the material evidence on the record; that Mst. Rehmat Bibi during the pendency of the appeal also made a compromise with the petitioner, who not only had sworn an affidavit, but also made a statement before the learned lower appellate court while admitting the factum of compromise, but this fact has not been considered by the learned lower appellate court, and it is a clear cut case of misreading and non- reading of the material evidence on the record, which has resulted in arriving at an erroneous view that the suit was partly dismissed.
7. 5.Arguments heard and the documents appended with this file have been minutely perused. The learned trial court had dismissed the suit as a whole, but on an appeal filed by the petitioner- plaintiff, the suit was partly decreed to the extent of Ghulam Muhammad and partly dismissed to the extent of Rehmat Bibi, and both of them have been succeeded through their heirs in the memo. of parties. The petitioner-plaintiff has been non-suited to the extent of Rehmat Bibi mainly on the ground of non-proving the agreements to her extent. Issue No.1 for the purposes of this Civil Revision is relevant, which is reproduced as under:--- "(1)Whether defendant No.1 and predecessor of defendants No. 2 to 26 agreed to sell the disputed property to the plaintiff for a consideration of Rs.30,000 as earnest money and handed over the disputed property to the plaintiff under the sale transaction? OPP."
8. 6.The claim set up by the petitioner-plaintiff is that Mst. Rehmat Bibi and Ghulam Muhammad had agreed to sell the disputed Ihata to the petitioner for a sum of Rs.30,000, who were paid the earnest money amounting to R.6300 and agreement dated 25-8-1981 was executed, which was followed by the other agreements dated 7-11-1981, 25-5-1982 and 1-10-1986 whereby a further amount of Rs.20,300 was also paid and the remaining amount was settled to be paid at the time of execution of registered sale deed. It is an admitted fact even by the learned counsel for the petitioner during the course of arguments and also from the record available on the record, that except the first agreement dated 25-8-1981 (Exh.P.2), the other agreements did not find mention the thumb- impressions or signatures of Mst. Rehmat Bibi and even these did not contain her name. As such all the three subsequent agreements have no binding force on Rehmat Bibi, who is succeeded by respondents 1 and 2.
9. 7.Now the case against Mst. Rehmat Bibi only rested upon agreement dated 25-8-1981 (Exh.P.1). The petitioner produced as many as 8 P.Ws. in support of his claim. Sajid lqbal (P.W.1 ), was the Record Keeper of the office of DOR, who only produced record regarding Exh.P.2. Waseem Raza (P.W.2) was nephew of lbn-e-Ali, who was the alleged scribe of the said document and he was produced to identify the signatures and handwriting. lrshad Ahmad (P.W.3) was the brother of Nisar Ahmad, who was the scribe of the agreement dated 25-8-1981 and he only identified the signatures and handwriting of his deceased brother Nisar Ahmad. Muhammad Aslam (P.W.4) and Nawab, Din (P.W.5) are the marginal witnesses of the agreement of sale which was lastly executed on 1-10- 1986. Similarly Mauladad (P.W.6) was the marginal wetness of agreement (Exh.P.3) while Muhammad Ramzan (P.W.7) was son of Abdul Ghafoor, the alleged marginal witness of the first agreement (Exh.P.2), who appeared in the secondary evidence and only identified the signatures of his father on the said agreement. Muhammad Ismail petitioner-plaintiff himself appeared as P.W.8.
10. No other witness has been produced. A perusal of the agreement (Exh.P.2) reveals that Sibt-e- Hassan Shah and Abdul Ghafoor were the marginal witnesses thereof, but none of them appeared in the trial court and in the secondary evidence P.W.7 appeared to prove the signatures of Abdul Ghafoor. As such only one marginal witness was produced and the other was withheld. Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 are relevant for resolving the controversy involved herein, which are reproduced here for ready reference:--- "17.Competence and number of witnesses.--- (1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Qur'an and Sunnah:"
11. (2)Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law:--- (a)in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and (b)in all other matters, the Court may accept, or act on the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant."
12. "79.Proof of execution of document required by law to be attested: If a document is required by law to be attested, it shell 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 given 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."
13. In the written statement the execution of the agreement had been specifically denied and it was mandatory upon the plaintiff-petitioner to prove its execution by the production of the legal evidence, but he withheld the same for the reasons best known to him. Even otherwise the payment of mode of earnest money to Mst. Rehmat Bibi was not disclosed. The learned counsel for the petitioner has failed to disclose that any efforts were made by the petitioner to produce the other marginal witness. If the best evidence in spite of its availability is withheld by the person, who is bound to produce it, inference under Article 129 Illustration (g) of Qanun-e-Shahadat Order, 1984, which reads as under:--- Illustrations.
14. The Court may presume.--- "(g)that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; is to be drawn against him with the impression that if such evidence was produced by them, that would not support their version. After perusal of the evidence on the record, I concur with the finding arrived at by the learned lower appellate court to the effect that the petitioner failed to adduce the legal evidence to prove that Rehmat Bibi had affixed her thumb impressions on the agreement (Exh.P.2) and it could not be used against her.
15. 8.In addition to above, this court has also observed that according to the first agreement dated (Exh.P.2) dated 25-8-1981 out of the total amount of Rs.30,000 agreed upon between the parties, only an amount of Rs.6300 had been paid as earnest money and the remaining was to be paid at the time of registration of the sale deed, but subsequent thereto three other agreements dated 7- 11-1981, 25-5-1982 and 1-10-1986 were also executed in between the petitioner and Ghulam Muhammad only whereby a further amount of Rs.20,300 was paid. It is not case of the petitioner- plaintiff that Mst. Rehmat Bibi had conferred any power upon her brother Ghulam Muhammad to make the agreement with the petitioner regarding her sale as well by receiving the remaining amount. As such the agreement (Exh.P.2) to the extent of Mst. Rehmat Bibi had become redundant and of no legal effect as she was not paid share from the further amount and the new agreements were executed by her exclusion.
16. 9.The contention of the learned counsel for the petitioner that Mst. Rehmat Bibi had herself appeared in the appellate court and admitted the contents of the Affidavit (Mark-A) sworn by her, according to which she agreed to sell her share and receive the total sale price has already been dealt with by the learned lower appellate court through the impugned judgment and turned down in the following terms:--- "---. The perusal of the order dated 13-4-2010 shows that the respondents moved the application in this court to record the statement of Rehmat Bibi respondent No.1 about her affidavit. The learned predecessor of this court observed that Rehmat Bibi respondent No.1 was physically infirm and unable to make her statement, therefore, the affidavit Mark-A has lost its significance." and I do not find any good reason to differ therewith. The learned counsel for the petitioner has failed to point out if the above order dated 13-4-2010 was further challenged and the said finding was reversed. At this stage no exception can be taken to it having attained finality and even otherwise Mst. Rehmat Bibi also died subsequently during the pendency of appeal.
17. 10.For the foregoing discussion, I am of the view that the impugned judgment and decree to the extent of dismissal of appeal and suit to the extent of Mst. Rehmat Bibi deceased, who is succeeded by respondents 1 and 2 is not reflective of any misreading or non-reading of the material evidence on the record and the same does not warrant any interference by this court in the exercise of revisional jurisdiction rather the same is based on cogent reasons and supported by law. This revision petition having no force is dismissed in limine.
18. 11.Before parting with this order, I deem it appropriate to clarify that the findings arrived at by this court are restricted only to the disposal of this civil revision keeping in view the merits of the case of Rehmat Bibi alone and these are not meant to affect the merits of the case regarding Ghulam Muhammad.