This civil revision is directed against the judgment & decree dated 16.10.2015 and 15.01.2015, passed by learned Courts below, whereby the suit for Specific Performance of a contract dated 15.07.2009, was dismissed.
2. Shortly the facts for the disposal of this revision petition are that, the petitioner for the performance of an agreement to sell dated 15.07.2009, filed a Suit for Specific Performance with Permanent Injunction alleging therein, that the suit property measuring 7 kanal 2 marlas was purchased by one Mubarak son of Ghulam Ali, and uncle of the petitioner namely Muhammad Ali filed a suit for Pre-emption and at the time of filing the suit it was agreed, that Mehboob Alam would bear litigation expenses for the suit and in case the suit is decreed, the pre-empted land would be transferred equally in the name of Muhammad Ali and the petitioner. In this regard an "Iqrarnama" dated 15.07.2009 was executed but subsequently respondents refused to perform his part of the contact, therefore, the petitioner filed the suit.
3. The suit filed by the petitioner was resisted through written statement by the respondents through legal as well as factual grounds.
4. Learned trial court after framing necessary issues recorded the evidence of the parties and finally dismissed the suit on 15.01.2015.
5. Feeling aggrieved thereof, the petitioner filed an appeal, which too was dismissed vide judgment dated 16.10.2015. Hence, this revision petition.
6. Learned counsel for the petitioner submits, that it is correct that the petitioner could not produce two attesting witnesses to prove the agreement to sell dated 15.07.2009 but the petitioner also produced PW3, who is scribe and can be substitute of the marginal witness.
7. As regard the scribe, it has already been settled, that the scribe in any circumstances cannot substitute of any marginal witnesses. I am afraid, that the argument advanced by learned counsel for the petitioners has any substance in the presence of the principle laid down by the Hon'ble Supreme Court of Pakistan in the judgment titled Hafiz Tassaduq Hussain v. Muhammad Din through LRs and others (PLD 2011 SC 241), that the scribe of the agreement having appeared as witness to prove the agreement to sell could not assume the role of attesting witness. The relevant paragraphs are re-produced as under:- "9. 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.
10. 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 anybody else, if he had signed the document as a witness (Emphasis supplied) No legal inherent in competency 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 Ali 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 & 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 separately, 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."
8. Another principle laid down by the Hon'ble Supreme Court of Pakistan, while dealing with the proposition in the judgment supra, is as follows:- "However, the provisions of Article 17(2)(a) encompasses in its scope two fold objects (i) regarding the validity of the instruments, meaning thereby, that if it is not attested by the required number of witnesses the instrument shall be invalid and therefore if not admitted by the executant or otherwise contested by him, it shall not be enforceable in law (ii) it is relatable to the proof of such instruments in terms of mandatory spirit of Article 79 of The Order, 1984 when it is read with the later. Because the said Article in very clear terms prescribes "if a document is required by law to be attested, it shall 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 giving evidence."
9. Although learned counsel for the petitioners argued the case at some length but could not point out any illegality, irregularity or any jurisdictional defect in the judgment & decree passed by the learned Courts below. It has been ruled by the Hon'ble Supreme Court of Pakistan, that the concurrent findings on facts & record should not be interfered in routine, but in an extra ordinary circumstance, when the learned courts below have committed serious jurisdictional error or legal infirmity.
I find support from the valuable judgments of the Hon'ble Supreme Court of Pakistan, titled "Cantonment Board through Executive Officer Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161), Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469), Noor Muhammad and others v. Mst. Azmat-e-Bibi (2012 SCMR 1373), Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others (2010 SCMR 984), Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another (2008 SCMR 428), and "Abdul Ghafoor and others v. Kallu and others"
(2008 SCMR 452), that the High Court, in the case of concurrent findings, normally does not interfere unless the same is result of exercise of jurisdiction not vested in the learned courts below.
10. In view of the above law declared by the Hon'ble Supreme Court of Pakistan this petition having no force stands dismissed. No order as to costs.