' SHAHID WAHEED, J.---Challenge in this second appeal is to the judgment and decree dated 12.11.2005, passed by the learned District Judge, Kasur who affirmed the judgment and decree dated 13.12.2000 passed by the learned Civil Judge, 1st Class, Kasur whereby the suit of respondent No. 1 for specific performance of agreement to sell was decreed.
2. Muhammad Rafique, respondent No. 1, filed a suit for specific performance. Of agreement to sell dated 29.9.1991 (Ex.P1) against the petitioners and respondents Nos. 2 to 7 pleading therein that Muhammad Hussain, predecessor-in-interest of respondents Nos. 2 to 7, agreed to sell the suit land to him for consideration of Rs. 277,000/- out of which a sum of Rs. 50,000/7 was received by him and pursuant thereto a sum of Rs. I5,000/- was paid before the Sub-registrar, who registered the agreement to sell dated 29.9.1991. It was mentioned in the plaint that the present appellants in connivance with the Patwari maneuvered to enter/attest mutation of exchange No. 341 dated 30.9.1991 regarding the suit land in their favour; and, the refusal on the part of respondent No. 1 to execute the sale-deed gave rise to a cause of action for filing the suit. Muhammad Hussain contested the suit by filing a written statement whereby he denied that he had agreed to sell the suit property to respondent No. 1 or had received any earnest money; and, that the alleged agreement to sell dated 29.9.1991 was based on fraud. During pendency of the suit Muhammad Hussain died and thereupon his legal heirs, that is, respondents No. 2 to 7 were impleaded as defendants in the suit. The present appellants through their joint written statement contested the suit and stated therein that the alleged agreement to sell between respondent No.1 and the predecessor-in-interest of respondents Nos.2 to 7 i.e. Muhammad Hussain was forged, fictitious and based on fraud; that Muhammad Hussain agreed to exchange the suit property . With them vide agreement to sell dated 11.9.1991 where after the mutation of exchange No. 341 dated 30.9.1991 was validly sanctioned in their favour. On divergent pleadings of the parties, following issues were framed:--
(1) Whether the impugned agreement to sell is hit by MLR 115 and the suit is not maintainable?
OPD
(2) Whether the plaintiff is estopped by his conduct to file the suit? OPD No.1.
(3) Whether the suit is false and frivolous and has been filed with mala fide intention and defendants are entitled to special costs under Section 35-A, C.P.C.? OPD
(4) Whether the suit is not maintainable in its present form? OPD No.2.
(5) Whether the plaintiff has no cause of action and the suit has been filed with mala fide intention.
(6) Whether the defendants Nos.3 and 4 have spent Rs.50,000/- on the improvements and the defendants Nos.3 to 4 are entitled to get Rs. 50,000/- in case the suit is decreed? OPD No.
(7) Whether the plaintiff is entitled to the decree as prayed in the plaint? If so, on what terms? OPP
(8) Relief.
' Parties to the suit, in support of their respective claims, led evidence. After recording evidence, the learned Trial Court decreed the suit vide judgment and decree dated 13.12.2000. Feeling aggrieved, the present appellants assailed the above said judgment and decree through an appeal before the learned Addl. District Judge, Kasur who vide judgment dated 29.9.2003 remanded the case to the learned Trial Court for a fresh decision after framing additional issue regarding possession. The aforesaid judgment was assailed by respondent No.1, Muhammad Rafique, before this Court through FAO No. 241/2003. The above said FAO was accepted vide judgment dated 18.3.2004 and the learned District Judge, Kasur was directed to decide the appeal afresh. In compliance with judgment dated 18.3.2004 passed by this Court in FAO No. 241/2013 the learned District Judge, Kasur passed judgment and decree dated 12.11.2005 and dismissed the appeal.
3. The appellants through this second appeal under Section 100, C.P.C. Have called in question the judgments and decrees of the learned courts below whereby the suit brought by respondent No.1 for specific performance of agreement to sell dated 29.9.1991 (Ex.P1) was decreed by raising a question of law, that is, as to whether on the basis of agreement to sell dated 29.9.1991 (Ex.P1) and the evidence available on record a decree could be issued in favour of plaintiff/respondent No.l.
4. Learned counsel for the appellants contends that as enunciated in Article 79 of the Qanun-e- Shahadat Order, 1984 if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses of deed have been called for the purpose of proving its execution, if there be the attesting witness alive, and subject to process of the Court and capable of giving evidence. This requirement of law has not been complied with in the instant case as only one witness i.e. Arshad Ali (PW-3), who is not a marginal witness of the document (Ex.P1) has been produced. He further submits that the respondent No.1/ plaintiff failed in his effort to prove the agreement to sell (Ex.P1) as per provisions of the Qanun-e-Shahadat Order, 1984 for the simple reason that the evidence is certainly short of the requirements of Articles 17 and Article 79 of the Qanun-e-Shahadat Order, 1984 as no attesting witness has been produced.
5. The afore-stated contentions have been controverted by the learned counsel for the respondents. He submits that the respondents by producing Ahmad Din (PW-1) who is scribe of agreement to sell dated 29.9.1991 and Arshad Ali (PW-2) proved the execution of the disputed agreement to sell dated 29.9.1991 (Ex.P1) and thus the learned courts below have validly passed the judgments and decrees.
6. I have considered the arguments canvassed by the learned counsel for the parties. The document Ex.P1 is an agreement to sell dated 29.9.1991 which was executed between respondent No.!, Muhammad Rafique and Muhammad Hussain, predecessor-in-interest of respondent Nos.2 to 7; and, for its specific performance suit was filed by the respondent No.l. Abdul Aziz is the sole attesting witness of this document whereas status of Arshad Ali, Lambardar, who appeared before the learned Trial Court as PW-2 was only identifier).(URDU TEXT) According to Article 17 of the Qanun-e-Shahadat Order, 1984, the agreement to sell requires compulsorily attestation by two witnesses. Article 79 of the Qanun-e-Shahadat Order, 1984 ordains that if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses are called for the purpose of proving its execution. The conjunctive reading of the aforesaid two Articles, makes it clear that it is essential for the plaintiff to have examined at least two attesting witnesses of the agreement to sell in order to prove its execution; and, the scribe of a document can only be a competent witness in terms of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 if he has put his signatures as an attesting witness upon the document and not otherwise. The purpose, scope and requirements of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 have been the subject matter of different judgments of the Hon'ble Supreme Court of Pakistan and last in the series is the judgment passed in the case of Hafiz Tasadduq Hussain v. Muhammad Din through Legal Heirs and others (PLD 2011 SC 241). In the above cited precedent the Hon'ble Supreme Court of Pakistan has discussed the implication of noncompliance of the provisions of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984; and, has held that scribe of a document can only be a competent witness in terms of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 if he has fixed his signatures as an attesting witness of the document. The relevant extract of the judgment reads as under:-- "The command of the Article 79 is vividly discernible which elucidates that in order to prove an iristrument which by law is required to be attested, it has to be proved by two attesting witnesses, if they are alive and otherwise are not incapacitated and are subject to the process of the Court and capable of giving evidence. The powerful expression "shall not be used as evidence" until the requisite number of attesting witnesses have been examined to prove its execution is couched in the negative, which depicts the clear and unquestionable intention of the legislature, barring and placing a complete prohibition for using in evidence any such document, which is either not attested as mandated by the law and/or if the required number of attesting witnesses are not produced to prove it. As the consequence of the failure in this behalf are provided by the Article itself, therefore, it is a mandatory provision of law and should be given due effect by the Courts in letter and spirit. The provisions of this Article are most uncompromising, so long as there is an attesting witness alive capable of giving evidence and subject to the process of the Court, no document which is required by law to be attested can be used in evidence until such witness has been called, the omission to call the requisite number of attesting witnesses is fatal to the admissibility of the document. See Sheikh Karimullah v. Gudar Koeri and others (AIR 1925 Allahabad 56). The purpose and object of the attestation of a document by a certain number of witnesses and its proof through them is also meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and for this the legislature in its wisdom has established a class of documents which are specified, inter alia, in Article 17 of the Order, 1984. (See Ram Samujh Singh v. Mst. Mainath Kuer and others (AIR 1925 Oudh 737). The resume of the above discussion leads us to an irresistible conclusion that or the validity of the instruments falling within Article 17 the attestation as required therein is absolute and imperative. And for the purpose of proof of such a document, the attesting witnesses have to be compulsorily examined as per the requirement of Article 79, otherwise, it shall not be considered and taken as proved and used in evidence. This is in line with the principle that where the law requires an act to be done in a particular manner, it has to be done in that way and not otherwise.
' Coming to the proposition canvassed by the counsel for the appellant that a scribe of the document can be a substitute for the attesting witnesses: the point on which leave was also granted. It may be held that if such witness is allowed to be considered as the attesting witness it shall be against the very concept, the purpose, object and the mandatory command of the law highlighted above. The question, however, has been examined in catena of judgments and the answer is in the negative.
' It has been held in Nazir Ahmad and another v. M. Muzaffar Hussain (2008 SCMR 1639):- "Attesting witness was the one who had not only seen the document being executed by the executant but also signed same as a witness---Person who wrote or was 'scribe' of a document was as good a witness as any body else, if he had signed the document as a witness (Emphasis supplied) No legal inherent incompetency existed in the writer of a document to be an attesting witness to it".
In N. Kamalam and another v. Ayyasamy and another (2001) 7 Supreme Court cases 503), it has been held: "Evidence of scribe could not displace statutory requirement as he did not have necessary intent to attest."
In Badri Prasad and another v. Abdul Karim and others (1913 (19) IC 451, it is held:-- "The evidence of the scribe of a mortgage deed, who signed the deed in the usual way without any intention of attesting it as a witness, is not sufficient to prove the deed."
An attesting witness is a witness who has seen the deed executed and has signed it as a witness.
(Emphasis supplied)."
To the same effect are the judgments reported as Qasim All v. Khadim Hussain through legal representatives and others ' (PLD 2005 Lahore 654) and Shamu Patter v. Abdul Kadir Rowthan and others (1912 (16) IC 250).
Therefore, in my considered view a scribe of a document can only be a competent witness in terms of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 if he has fixed his signature as an attesting witness of the document and not otherwise; his signing the document in the capacity of a writer does not fulfil and meet the mandatory requirement of attestation by him parately, however, he may be examined by the concerned party for the corroboration of the evidence of the marginal witnesses, or in the eventuality those are conceived by Article 79 itself not as a substitute."
7. Being conscious of the principle laid down in the above cited precedent, learned counsel for the respondents has contended that the same would not be applicable to the instant case as it was not in field at the time of institution of suit by respondent No.1 . I am afraid, this contention has no force for the simple reason that Article 17 and 79 of the Qanun-e-Shahadat Order, 1984 were the relevant provisions of law in force when agreement to sell (Ex.P1) was executed; the suit was filed by respondent No.1; and, the decrees were passed by the learned Trial Court and the first Appellate Court. In the case in hand, the respondent No. 1/plaintiff was required to prove agreement to sell (Ex.P1) through a process provided in Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 for getting a decree in his favour: The respondent No. 1 produced scribe of the agreement (Ex.P1) namely Ahmad Din (PW-1); and the identifier, Arshad Ali (PW-2). The evidence of Ahmad Din (PW-1) was not sufficient to prove agreement to sell (Ex.P1) for the simple reason that he had neither attested Ex.P1 as an attesting witness nor had given any note on Ex.P1 to the effect that transaction was concluded and B payment was made in his presence. Thus, PW-1 (Ahmad Din) could not be given status of the attesting witness. In view of afore-stated provisions of law and evidence available on record, I am of the view that decree as prayed for by respondent No. 1 could not be issued for the simple reason that agreement to sell (Ex.P1) had not been proved by producing the requisite number of attesting witnesses of the said document.
8. This appeal is accepted and resultantly the judgment and decree dated 13.12.2000 passed by the learned Civil Judge 1st Class, Kasur and judgment and decree dated 12.11.2005 passed by learned District Judge, Kasur are hereby set aside and suit of respondent No. 1 is dismissed. Parties shall bear their own cost.