' ZAFARULLAH KHAN KHAKWANI, J.--- Munir Ahmad respondent/plaintiff filed a suit under Order XXXVII, Rule 2 of the Code of Civil Procedure, 1908 for recovery of an amount of Rs,1,00,000 against the appellant/defendant on the basis of promissory note and receipt dated 3-9-2008. The appellant/defendant appeared before the trial Court and made application for leave to appear and defendant the suit. After acceptance of his application the appellant was permitted to file written statement. In his written statement the appellant controverted the contents of the plaint. On divergent pleadings of the parties, following issues were framed:---
1. Is the defendant responsible to pay an amount of Rs,1,00,000 to the plaintiff under a pro note and a receipt dated 3-9-2008? OPP.
2. Is the impugned pro note and receipt dated 3-9-2008 feigned and spurious? OPD.
3. Is the defendant entitled to special costs? If so, how much? OPD.
4. Relief.
2. To prove his case the plaintiff entered the witness-box as PW.1 and reiterated the contents of the plaint. He produced Muhammad Ibrahim, one of the marginal witness of the pro note as PW.2 and also produced Abdul Rehman, Advocate who was scribe of the pro note as PW.3. In rebuttal evidence the plaintiff also produced Abdul Malik as PW.4 and also tendered in evidence original pro note Exh.P.1. And receipt Exh.P.2. In rebuttal the defendant entered into witness box as D'W.1 and also produced Nazar Hussain as DW.2.
3. At the conclusion of trial learned Additional District Judge, Liaqatpur decreed the suit of the plaintiff for recovery of Rs,1,00,000 vide judgment and decree dated 30-11-2010. Hence this appeal.
4. Learned counsel for the appellant while taking the benefit of the cases of Abdul Rauf v. Farooq Ahmad and another (PLD 2007 Lahore 114), Abdul Hameed v. Muhammad Afzal Atif (PLJ 2012 Lahore 500 DB), and Ram Narayan v. Bhagat and another v. Ram Chandra Singh and others" (AIR 1962 Patna 325) has contended that the learned trial Court did not take into consideration that the document in question carried signatures of marginal witnesses as such it was not a pro note and was actually a bond as such the learned Additional District Judge had no jurisdiction to try the case; that the learned trial Court did not appreciate that the document in question was a financial document and to prove the same evidence of both the marginal witnesses was necessary as per Qanun-e-Shahadat Order, 1984 as such the impugned decree was not sustainable in the eyes of law; that the defendant/appellant took a specific stance before the learned trial Court that the pro note was a fake document and an application in this regard was made before the learned trial Court for comparison of his admitted thumb impression with the thumb impression on the disputed document but the learned trial court dismissed the said application and that the learned trial Court has misinterpreted and misconstrued the provisions of law in this case which has resulted into miscarriage of justice.
5. On the other hand learned counsel for the respondent has submitted that onus to prove Issue No,1 was on the plaintiff who not only himself entered the witness box and made statement in line with his plaint but also produced original pro note and also produced Muhammad Ibrahim one of the marginal witness. Learned counsel submits that mere witness by any person does not change nature of the documents and since it was to be payable on demand as such it was not a bond and was a pro note as has rightly been held by the learned trial Court and as such the learned trial Court has rightly decreed the suit.
6. I have heard arguments of learned counsel for both the parties and have also gone through the record.
7. The case of the respondent/plaintiff in the plaint and as deposed at trial was that he had friendly relations with the appellant due to which he had trust on the appellant. On the asking of the defendant the plaintiff advanced an amount of Rs,1,00,000 as loan and in lieu thereof the defendant executed the pro note and receipt (Exhs.P1 and P2). He also produced Muhammad Ibrahim PW.2 marginal witness who fully supported plaintiff's stance on all material aspects. The plaintiff also produced Mr. Abdul Rehman, Advocate, scribe of the pro note who categorically stated that the defendant had taken loan and had executed the pro note in his presence. The plaintiff also tendered in evidence original pro note and the receipt. I have minutely gone through the pro note document in the light of argument of learned counsel for the appellant that the document was witnessed by two witnesses and carried as such it was not a pro note and was rather a Bond. In order to better appreciate as to whether the instrument (Exh.P.1) was a pro note or a Bond, it would be better to read the definition of both these instruments given by the Legislature.
In section 4 of the Negotiable Instruments Act, 1881 a Promissory Note has been defined as under:-- - "Promissory note".--- A "promissory note" is an instrument in writing (not being a bank-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."
' The definition provided by the Act would reveal that in order to qualify for a document to be pro note it must contain four conditions,
(i) an unconditional undertaking to pay,
(ii) the sum should be a sum of money and should be certain,
(iii) the payment should be to or to the order of a person who is certain, or to the bearer, of the instrument, and
(iv) the maker should sign it.
' If these four conditions are present, a document becomes a promissory note. A "Bond" has been defined in the Stamp Act, 1899. As per section 2(5) of the Act the definition runs as under:--- "(5) "BOND": "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.
' Thus a Bond is an instrument which can be divided into two parts; i,e, the obligation and the condition. In the first part the obligor binds himself to pay a sum of money and in the second, terms of the agreement are set forth with the condition that on the performance or not performance of any specific act, the bond would be void. Thus the Bond is merely a form of contract under which a person binds himself to pay money either in the present or at some future time conditionally. It must be attested by a witness and should not be payable to order or bearer. Thus the language of the Bond shows that it was written not necessarily for evidencing the debt obtained by the debtor and an express promise to pay the debt within a specified time but is an instrument whereby a person obliges himself to pay money to another conditionally and it should be attested by a witness and it was not payable to order or bearer.
8. The Hon'ble Supreme Court of Pakistan in a recent judgment passed in C.A. 1784/2009 titled Muhammad Ashraf v. Muhammad Boota vide judgment dated 5-6-2014 while dealing with the same law point and discussing all the cases referred in para 3 supra held in para 7 as under:--- ' "The above quoted provision reveals that a promissory note is an instrument in writing if it contains an unconditional undertaking, signed by the maker, to pay on demand or at a fixed or determinable future time, a certain sum of money either to, or to the order of a certain person or the bearer of the instrument. The instrument in question contains all these conditions. It, however, bears attestation of witnesses but it neither robs it of its nature as a promissory note nor changes any of its conditions nor even the intentions of the parties. It thus cannot be treated as bond by any stretch of interpretation. For the word bond as defined in section 2(5)(b) of the Stamp Act means and includes any instrument attested by witnesses and not payable to order or bearer whereby a person obliges himself to pay money to another. When we confronted the learned ASC for the respondent whether the instrument contains an unconditional undertaking to pay on demand or at a fixed or determinable future time, a certain sum of money either to the order of a certain person or the bearer of the instrument, he answered in the affirmative. When so the mere fact that it hears attestation of witnesses would riot make it a bond. Therefore the impugned judgment and the judgments relied upon being against the letter and spirit of section 4 of the Negotiable Instruments Act cannot be upheld. The case of "Farid Akhtar Hadi v. Muhammad Latif Ghazi and another" (supra) being in tune with the letter and spirit of section 4 of the Act may well be cited in this behalf. Reference to the case of "Ram Narayan Bhagat and another v. Ram Chandra Singh and others" (supra) is misconceived as in that case there was nothing in the instrument indicating that the amount was payable to order or bearer. It thus follows that the promissory note containing all the conditions described in section 4 of the Negotiable Instruments Act cannot be treated as bond."
' In the light of the above, a bare look at Exh.Pl would reveal that all the ingredients required for a promissory note are fulfilled in the said document. I am afraid that mere attestation by witnesses does not oust the document from the definition of a pro note if all the above noted ingredients are otherwise available. To determine the nature of an instrument whether there is a promise to pay, the best is to see what is the intention of the parties and what is the instrument in the common acceptance of the persons among whom it is used. How the instrument is described by the parties themselves is just one of the elements to be considered and nothing more. Ordinarily in order to amount to a promissory note, an instrument must simply contain a promise to pay and nothing else.
9. There is another aspect of the case. In the application for leave to defend the suit which was supported by affidavit, the appellant claimed that the plaintiff was inimical towards defendant. In the written statement the defendant took up the plea that he had enmity with one Wazir Khan son of Ahmad Din and the plaintiff in connivance with said Wazir Khan had prepared a forged and fictitious document to involve the appellant in this false case. In the witness-box the defendant took up a different stance that he had enmity with his paternal uncle Rahim Bukhsh against whom he had even got registered a criminal case as he had injured him as a result of which his arm was fractured and that in connivance with the said uncle of the appellant the plaintiff has filed this false and frivolous case. All these facts show that the defendant/appellant is taking somersaults and does not stick to a stand.
10. As against this Nazar Hussain DW.2 who was produced by the defendant admitted in cross- examination that the plaintiff was a thorough gentle man; that he knew the plaintiff for the last 15/20 years and that it was not in his knowledge that the plaintiff had ever committed fraud with anyone. This conduct of the plaintiff as against the defendant is also relevant.
11. The minute visit to the evidence of both the parties and considering that the document executed by the plaintiff was promissory note, I find that the evidence produced by the plaintiff is confidence inspiring and trust worthy as against the evidence produced by the defendant/appellant and that the plaintiff has fully proved that the defendant was responsible to pay Rs,1,00,000 to the plaintiff under the pro note and the learned trial Court has rightly answered the Issues in favour of the plaintiff.
12. In view of what has been noticed and discussed above, this appeal fails and is hereby dismissed.