ATIR MAHMOOD, J.---Brief facts of the case are that the respondents Qazi Abdul Ali etc. Filed a suit under Order XXXVII, C.P.C. For'recovery of Rs,904,157/- un the basis of a pronote allegedly executed by the appellant. The averments contained in the plaint are that an organization for collection of contributory committee was formed by the respondents and others; that all the contributions made by the members were to be collected by the appellant; that the appellant used to collect the money and pay the contributory committees to the concerned individuals; that respondents Nos.1 to 3 paid sums of Rs,475,580/-, Rs,269987/- and 159,590/- respectively to the appellant who did not return the same to the respondents; that on demand, the appellant agreed to pay the same and executed iqrar nama (Exh.P1) and promissory note (Exh.P2) both dated 26.04.1993 in favour of the respondents promising to pay the amount due to them till 15.05.1993, however, later on, he backed out from his promise which constrained the respondents to file the instant suit.
2. On receipt of summons, the appellant appeared before the court and filed leave to appear and defend which was ultimately allowed by the court. Thereafter, the appellant filed contesting written statement wherein he denied the allegations of the respondents while asserting that the alleged agreement and the promissory note were result of fraud and forgery as these were never executed by him.
3. Out of divergent pleadings of the parties, following issues were framed:-- 1) Whether the defendant borrowed Rs,9,04,157 from the plaintiff and executed pronote and its receipt on 26.04.1993? OPP.
2) Whether the suit is not maintainable? OPD 3) Whether the suit is false and vexatious and the defendant is entitled to special costs under section 35-A, C.P.C., if so, to what amount? OPD.
4) Relief.
' Both sides led their respective evidence which was duly recorded by the learned trial court.
Thereafter, learned District Judge, Chakwal decreed the suit with costs vide judgment and decree dated 21.11.2001. Hence this RFA.
4. Learned counsel for the appellant inter alia contends that under Articles 17 and 79 of Qanun-e- Shahadat Order, 1984, any document which creates financial liability should be attested by two marginal witnesses but the alleged pro note (Exh.P-2) was admittedly not signed by any witness; that the receipt (Exh.P3) and agreement (Exh.P1) cannot be considered as negotiable instruments as defined in Negotiable Instruments Act; that there are two different pleas of the plaintiffs for their claim as at the one hand, they state that the amount was received by the appellant on account of contributory committees while on the other hand, they say that the appellant obtained qarze hasna from the plaintiffs; that on appellant s request, the signatures of the appellant were sent for comparison to the handwriting expert who submitted report in favour of the appellant; that the handwriting expert also appeared as DW.1 in the court but this important piece of evidence was not given any weightage by the learned trial court; that the plaintiffs also failed to prove that an organization for contributory committee was formed or he ever paid the committee to its members; that the impugned judgment and decree is against law and fact, therefore, this RFA be allowed, the impugned judgment and decree be set aside and the suit of the respondents- plaintiffs be dismissed.
5. On the other hand, learned counsel for the respondents has vehemently opposed this appeal and fully supported the impugned judgment and decree by submitting that the pro note Exh.P2 was duly signed by the appellant and its receipt Exh.P3 was not only signed by the appellant but was also attested by the two marginal witnesses and the same was proved by the respondents through production of marginal witnesses. He argued that the presumption of truthfulness/correctness is attached to a pro note under Section 118 of the Negotiable Instrument Act. He further argued that once a document is exhibited in evidence without any objection by the other side, then it cannot be subsequently objected to through plea that it was insufficiently stamped. He has relied upon Qadir Bakhsh (deceased) through L. Rs, v. Allah Dewaya and another (2011 SCM R 1162), Manzoor Ahmed v. Qamar ul Zaman (2011 CLC 1756) and Manzoor Ahmed Khan v.
Mst. Minhajunnisa (1975 SCMR 1657).
6. Arguments heard. Record perused.
7. After hearing the arguments and perusal of record, pivotal issue is issue No,l. In order to prove this issue, respondent No,1 appeared in the witness box as PW. 1 and deposed in line with the averments made in the plaint. In cross-examination, he stated that there are 34 members of the committee which was formed on 01.01.1999 and was a registered committee. He stated that in July 1992, collection of committee was stopped and then they started demanding for the first time in July 1992.
8. PW.2 Asad Mahmood deposed that he is son of Muhammad Khan who was petition writer and stamp vendor. He identified the writing of his father on Exh.P1 and also identified his signatures on Exh.P1/1 and his seal as Exh.P1/2. He also dposed that the pro note Exh.P2 and receipt Exh.P3 are handwritten by his father. He produced register of stamp vendor and produced a copy of the same as Exh. P4 wherein he stated that the signatures of Aftab Ahmed are affixed. In cross-examination, he denied the suggestion that the page upon which entry No,4969 is present has been subsequently added. Learned trial court on the request of learned counsel for the appellant himself inspected the register and observed that pages have been stitched on 2/3 different places. It was further opined by learned District Judge that the flow of writing and sequence of pages Nos.108 to 110 did not appear to be substitution.
9. PW.3 Zahid Maqbool, marginal witness, deposed that Exh.P1, Exh.P2 and Exh.P3 were executed in his presence. He identified his signatures as Exh.P1/3 and Exh.P3/2 upon the agreement as well as won the receipts. In cross-examination, he deposed that he was unaware about any dispute between the parties prior to execution of documents. He also showed his ignorance as to whether the tickets were affixed upon the pronote prior to its writing or were subsequently affixed. He also admitted that in front of him, no amount was exchanged.
10. PW.4 Azadar Shah also identified his signatures on Exh.P1 as Exh.P1/5 and on receipt Exh.P3 as Exh.P3/3. He deposed that the appellant singed the pronote and the receipt in his presence. In cross-examination, he stated that he came to know about the dispute between the parties 15/20 days earlier than the execution of the document. He also stated that Khawaja Sahib (the appellant) singed the pro note on two places, and register and receipt were also signed by him.
Howrver, he denied the suggestion that pro note was neither written in his presence nor it was signed by the appellant.
11. In rebuttal, DW.1 Muhammad Bashir Qureshi, Examiner, Forensic Science Laboratory, Lahore appeared before the court to depose that he was deputed to get comparison of the signatures of the appellant with that upon the disputed document and that in his opinion, the signatures on Exh.P1, Exh.P2 and Exh.P3 did not appear identical characteristics with the specimen/routine Signatures. Of Aftab Ahmed (the appellant). He produced his report as Exh.D1, photo analysis chart of the disputed signatures and subsequent signatures as Exh.D2. In reply to the question, as to whether he has mentioned in his report the difference between the angle, placement of dots, space between the letters etc., he replied that he has not mentioned the above characteristics but the negative points are clearly mentioned in his analysis chart Exh.D2. He denied the suggestion that he made an incorrect report.
12. The appellant himself appeared as DW.2 denying receipt of amount of Rs,9,04,157/- from any of the plaintiffs and also deposed that Exh.P1, Exh.P2 and Exh.P3 were never executed by him and the signatures upon these documents are forged. In cross-examination, he denied that he was convener of the committee to collect committees from the members and that besides collecting the committee in dispute, he did not manage other committees. He admitted that Qazi Mazhar Hussain was got appointed referee to settle the matter in dispute who submitted report against him. He also admitted that the said report was set aside because it was considered to be a report of an arbitrator. He denied that he is having any committee of the plaintiffs. He also denied that Mark 'A was signed by him and that Exh.P1, Exh. P2 and Exh.P3 bear his signatures. He, however, admitted that after the institution of the suit, he got registered a criminal case against the appellant which was cancelled.
13. Putting evidence of the parties in juxta position, Exh.P2 suggests that the disputed amount was given as qarz-e-hasna. It nowhere suggests that the amount was already lying with the appellant and he undertook to return the same. PW.1 nowhere stated in his examination-in-chief or during the cross-examination that when and on what date, he was entitled to receive the amount of the committee. The pro note has allegedly been signed but the signatures are only present on the tickets underneath the pro note as well as the receipt. The receipt Exh.P3 also does not bear the signatures of the appellant. It is reflected from statement of PW.3 that this witness was not sure as to whether the stamps were affixed upon the pro note prior to its writing or were subsequently affixed. Had the signatures been made upon the tickets in his presence, the said fact must have been in his knowledge. None of the witnesses of the receipt deposed that any amount was paid in his presence. Even none of them was member of the committee. The plaintiffs have not produced any member of the alleged committee in support of their contentions which amounts to withholding of best available evidence and negative inference may be drawn that had there been any member of the committee appeared before the court, he might have deposed against the respondents/plaintiffs. We have also seen the signatures of the appellant over the tickets on receipt pro note Exh.P3. Generally, when ticket having affixed on a document is signed, some part of the signature goes beyond the ticket to the document but the signatures have been made solely on the tickets and even not a dot of the signature is present on the document Exh.P3. Therefore, an inference can be drawn that the tickets were separately signed and then affixed on the Exh.P3 at a later stage. The document Mark 'A' did not reflect in dispute between the parties. Documents Exh. PI, Exh.P2 and Exh. P3 were executed on 26.04.1993 prior to document Mark 'A'. Respondent/ Plaintiff No,1 Qazi Abdul Ali is signatory of Mark 'A' whereas 25 others were also present in the said meeting but none of them was produced before the court to strengthen the case of the respondents/ plaintiffs.
Furthermore, none of the witnesses deposed that when the amount of committee, which was allegedly to be delivered to the plaintiffs, was withheld by the appellant. We are of the considered opinion that the plaintiffs have failed to establish that the amount of Rs,904,157/- was outstanding against the appellant and he was liable to make its payment as well as the execution of Exh.P1, Exh.P2 and Exh.P3 could not be proved through cogent and credible evidence as there is material discrepancy between the oral as well as the documentary evidence.
14. Furthermore, the report of handwriting expert also reveals that the signatures of the appellant do not tally with the signatures on the disputed documents but the learned trial court did not rely upon the same. The learned trail court also failed to give its own findings regarding resemblance of disputed signatures with that of the admitted/specimen signatures of the appellant. In our opinion, if the trial court was not satisfied with the report of handwriting expert, then he should have given its own findings in that regard. In the circumstances, the judgment and decree passed by learned Trial court is not sustainable in the eye of law.
15. Resultantly, this appeal is allowed, the impugned judgment and decree is set aside and the suit of the respondents is dismissed.