MALIK SHAHZAD AHMAD KHAN, J. ---Instant appeal has been filed against the judgment and decree dated 31.10.2009 passed by the learned Addl. District Judge, Sialkot, whereby the suit filed by Muhammad Tahir Qasim Awan. (respondent) under Order XXXVII, Rule 2 of C.P.C., for recovery of Rs,6,50,000/- on the basis of promissory note dated 17.03.2008, was decreed in his favour.
2. As per brief facts of the present case, Muhammad Tahir Qasim respondent/plaintiff filed a suit against Khawar Pervaiz Butt appellant/ defendant on the ground that the appellant/defendant borrowed an amount of Rs,6,50,000/- from him and executed a promissory note dated 17.03.2008.
The said promissory note was duly signed and thumb marked by the appellant/defendant. The respondent/plaintiff, later on demanded back the amount of loan from the appellant/defendant but he refused to do so. The respondent/plaintiff therefore, filed the abovementioned suit for recovery of his loan amount. The application filed by the appellant/ defendant for leave to appear and to defend the suit was allowed by the learned trial court. The appellant/defendant thereafter, filed his written statement, wherein he averred that the respondent/plaintiff had no cause of action and his signature and thumb impression on the promissory note in question, were obtained through fraud and misrepresentation and promissory note was without consideration. The learned trial Court framed the following issues from the divergent pleadings of the parties.
ISSUES: 1). Whether the plaintiff has no cause of action to file the instant suit? OPD 2). Whether the plaintiff obtained promissory note from the defendant with fraud.? OPD 3). Whether the defendant executed promissory note dated 17.03.2009 in favour of the plaintiff having received Rs .6,50,000 ! OPP 3-A). Whether the plaintiff obtained promissory note from the defendant with fraud, .nisrepresentation, without consideration and with the collusion of his brother Asim/Shaukat? OPD 4. Relief.
In order to prove his case, the respondent/plaintiff produced Syed Irshad Kazmi as PW-1 and he himself appeared in the witness box as PW2. In his documentary evidence, the respondent/plaintiff produced promissory note as Exh.P-1. The appellant/defendant himself appeared in the witness box as DW-1 and stated that he had friendly relationship with the brother of the respondent/plaintiff, namely, Asim. Asim asked him (appellant/defendant) that his brother Tahir Qasim (respondent/plaintiff) was not ready to give him the money and as he (appellant/defendant) had good relationship with the respondent/plaintiff therefore, if he takes money from the respondent/plaintiff, then he (Asim) will return the same to him (appellant/defendant). As a guarantee for the repayment of loan amount, Asim handed over to him (appellant) a cheque-of Rs,6,25,000/- which was Exh.D-1. The appellant/defendant therefore made a request for loan to the respondent/plaintiff who agreed to pay the same and obtained signature and thumb impression of the appellant/defendant on a receipt. After obtaining signature and thumb impression, he (respondent/plaintiff) promised that the, payment will be made on the next day but on the following day, the respondent/plaintiff told the appellant/defendant that he had already handed over the loan amount to his brother Asim. It was further stated by the appellant/defendant that a fraud was committed with him by the respondent/plaintiff and his brother Asim. In his documentary evidence, the appellant/defendant produced cheque Exh. D-1.
3. After recording of evidence of the parties and hearing the arguments of their learned counsel,' the learned Addl. District Judge, Sialkot decreed the suit filed by the respondent/plaintiff vide the abovementioned impugned judgment and decree hence, the present appeal before this Court.
4. It is contended by learned counsel for the appellant that the promissory note Exh.P-1 does not bear signatures of two attesting witnesses, whereas, Article 17(2)(a) of the Qanun-e-Shahadat Order, 1984 provides for attestation of a document by two witnesses, in the matters pertaining to financial or future obligations therefore, the document Exh.P-I cannot be relied upon; that adhesive stamps on the promissory note Exh.P-1 were not properly cancelled because the said adhesive stamps do not bear the signatures of the respondent/plaintiff and, as such, the aforementioned promissory note was not properly stamped therefore, the same was inadmissible in evidence in the light of provisions of Section 12(2) of the Stamp Act, (II of) 1899; that the appellant/defendant had denied the passing of any consideration to him, under the promissory note Exh.P-1 and had clearly stated that the promissory note was without consideration therefore, the burden shifted upon the respondent/plaintiff to prove that any consideration was paid to the appellant/defendant 'but he miserably failed to discharge the said burden; that although under Section 118 of the Negotiable Instruments Act, 1881, there is presumption that a negotiable instrument is executed against consideration but the said presumption is rebuttable and keeping in view the evidence produced in the instant case, the aforementioned presumption has successfully been rebutted by the appellant/defendant; that version of the appellant/defendant was fully proved through documentary evidence produced in this case in the shape of cheque Exh.D-1 but the said documentary evidence has not been properly appreciated by the learned trial Court while passing the impugned judgment and decree; that the signature and thumb impression of the appellant were deceitfully obtained by the respondent/plaintiff on a blank receipt and the version of the appellant/defendant that he has been defrauded by the respondent/plaintiff and his brother Asim, has not been duly considered in this case; that it was stance of the appellant/defendant in his written statement that he was immature and mentally weak but this aspect of the case has completely been overlooked by the learned trial Court; that the impugned judgment and decree is result of misreading and non-reading of evidence, therefore, the same may be set-aside. In support of his contentions, learned counsel for the appellant/defendant has placed reliance on the cases reported 'as Mst. Sajida Abbas Zaidi v. Syed Arshad Ali Jafri (1990 CLC 1018), 'Mirza Arif Bain v.
Mubarik Ali' (PLD 1992 Lahore 366), 'K.M. Muneer v. Mirza Rashid Ahmad' (PLD 1963 (W.P.) Karachi 905), 'Arjumand Azhar and others v. Salim Akhtar Khan and another' (204 YLR 2368), 'Asif Ali and 6 others v. Saeed Muhammad' (2009 CLD 1301) and 'Malik Liaqat Ali v. Muhammad Sharif' (2009 CLD 1313).
5. On the other hand, this appeal has been opposed by learned counsel for the respondent/plaintiff on the grounds that the respondent/plaintiff has proved his case through reliable oral, as well as, documentary evidence therefore, his suit was rightly decreed by the learned trial Court; that the Negotiable Instruments Act, 1881, is a special law and under the provisions of the Act ibid, there was no need of attestation of promissory note Exh.P-1 by two attesting witnesses; that the provisions of above mentioned special law, override the provisions of Article 17 of the Qanun-e-Shahadat Order, 1984, which is a general law; that Syed Irshad Kazmi PW-1 was the scribe of promissory note Exh.P-I and he was an independent witness, who fully supported the case of the respondent/ plaintiff; that the appellant/defendant has admitted his signature and thumb impression on the promissory note Exh.P-1 therefore, the burden shifted upon him to prove that any fraud was committed with him by the respondent/plaintiff but he did not produce any cogent or confidence inspiring evidence in order to discharge the said burden; that all the adhesive stamps, affixed on the promissory note Exh.P-I, have been cancelled/ crossed and there is no legal requirement that in all cases, the said stamps should contain the signatures of the party executing the same; that the promissory note Exh.P-I was properly stamped according to the provisions of the Stamp Act, 1899; that under Section 118 of the Negotiable Instruments Act, 1881, there is presumption that a promissory note was executed against consideration and the appellant/defendant miserably failed to rebut the said presumption, that the appellant/defendant being in league with the brother of the respondent/plaintiff namely Asif took a frivolous plea of fraud, as the said brother had strained relations with the respondent/plaintiff; that no Medical Certificate regarding the weak mental condition of the appellant/defendant was produced in evidence in this case and the above mentioned ground of weak mental condition of the appellant/ defendant has been taken to usurp the amount of lo'an, taken from the respondent/plaintiff; that there is no substance in the present appeal therefore, the same may be dismissed. In support of his contentions, learned counsel for the respondent/plaintiff has placed reliance on the cases reported as 'Qazi Abdul Ali and others v.
Khawaja Aftab Ahmad' (2015 SCMR 284), 'Munir Ahmad Kahloon v. Rana Muhammad Yousaf' (PLD 2003 Lahore 173) 'Muhammad Shah v. Sheikh Riaz-ud-Din and another (2004 YLR 1669), 'Muhammad Hanif v. Kissan Dost (Pvt.) Limited' (2003 LLD 224) 'Muhammad Ashiq and another v.
Niaz Ahmad and another' (PLD 2004 Lahore 95) and 'Abdul Rauf v. Farooq Ahmed and another'
6. Arguments heard. Record perused.
7. As mentioned earlier, the respondent/plaintiff filed suit for recovery of Rs,6,50,000/- against the appellant/defendant, on the basis of promissory note, Rxh.P-1. It was claim of the respondent/plaintiff that the appellant/defendant borrowed an amount of Rs,6,50,000/- from him and for the repayment of said amount, he executed promissory note Exh.P- I. In order to prove his case, respondent/plaintiff produced Syed Irshad Kazmi, as PW-1 and he (respondent/plaintiff) himself appeared in the witness box as PW-2. Syed Irshad Kazmi is the scribe of the promissory note Exh.P-1. He stated in his examination-in-chief that promissory note Exh.P-1 was written by him and the same bears his signature Exh.P-1/1. He further stated that Khawar Pervaiz appellant/defendant also affixed his signature and thumb impression on the promissory note which are Exh.P-1/2. In his cross-examination, he further stated that the amount of Rs,6.50,000/- mentioned in the promissory note, was paid in his presence and the payment was made at the time of signing the above mentioned document. Syed Irshad Kazmi PW-1 is admittedly not related to the respondent/plaintiff. He is an independent witness. The respondent/plaintiff, namely, Muhammad Tahir Qasim Awan, himself appeared in the witness box as PW-/2. He stated that an amount of Rs,6,50,000/- was obtained as loan by the appellant/defendant and for the repayment of said amount, promissory note Exh.P-1 was executed by the appellant/defendant. Both the above mentioned witnesses were cross-examined at length but nothing favourable to the appellant/defendant could be brought on the record. Their evidence is trustworthy and confidence inspiring. It is pertinent to note that the appellant/defendant has admitted his signature and thumb impression on the promissory note Exh.P-1. The stance of the appellant/ defendant, however, was that his signature and thumb impression were obtained fraudulently on a blank receipt. The said stance of the appellant/defendant is not believable because promissory note Ex.P-1 has been executed on a printed form, clearly showing that it was a promissory note.
8. It is true that the promissory note Ex.1 is not attested by two witnesses but in my humble view under the Negotiable Instruments Act, 1881, there was no need of attestation of a promissory note or cheque by two witnesses. Although under Article 17(2)(a) of the Qanun-e-Shahadat Order, 1984, it was mandatory that an instrument pertaining to the financial or future obligations should be attested by two men or one man and two women but application of the aforementioned sub- clause (a) is subject to clause (2) of the said Article which reads as under:-- "17. Competence and number of witness.- (1)
(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.)
(underlining and bold supplied)
Article 17(2) of the Order ibid clearly ordains, "unless otherwise provided in any other special law."
The Qanun-e-Shahadat Order, 1984 is a general law, whereas, the case in hand has been filed on the basis of promissory note Exh.P-1 therefore, the provisions of special law i,e. The Negotiable Instruments Act, 1881, are applicable in the instant case. It is also noteworthy that the Qanun-e- Shahadat Order, 1984 came into force on 26.10,1984 and at that time, the Negotiable Instruments Act, 1881 was already in force therefore, the Act ibid was a special law within the meaning of the aforementioned provisions of the Qanun-e-Shahadat Order, 1984. Section 4 of the Negotiable Instruments Act, 1881, is reproduced hereunder in order to determine that as to whether promissory note is required to be attested by two witnesses, under the said Act:-- "4. "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 to. the bearer of the instrument."
It is evident from the perusal of above provision of special law that there was absolutely no need of attestation of a promissory note by two witnesses, Remaining conditions to qualify a document to be a promissory note, like the instrument should be in writing, there should be unconditional undertaking to pay on demand or at a fixed or determinable future time, a certain sum of money, to a certain person or bearer of the instrument and that the instrument should contain the signature of the maker, are fully present in the document Ex.1. Similar view was taken by this Court in the case of 'Abdul Rauf v. Farooq Ahmed and another' (PLD 2007 Lahore 114). Likewise, in the case of 'Sheikh Muhammad Shakeel v. Sheikh Hafiz Muhammad Aslam' (2014 SCMR 1562), at page 1565, the apex Court was pleased to observe as under:-- "The learned High Court has held that the Promissory Note was not attested in terms of Article I7(2)
(a) of the Order therefore, it was not a valid instrument. This finding of the learned High Court is contrary to the language of section 4 of the Act, which defines a Negotiable Instrument. In terms of section 4 of the Negotiable Instruments Act, a Promissory Note is required to contain the following ingredients:--
(i) An unconditional undertaking to pay, (ii)the sum should be the 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, (iv)and the maker should sign it.
10. If an instruments fulfills the above four conditions it will be termed as Promissory Note within the meaning of section 4 of the Act. The requirement of attestation of a document as contained under Article 17(2)(a) of the Order is contrary to the definition given by section 4 of the Act. Therefore, we are of the considered view that the Promissory Note Exh.P.2 produced by the appellant in evidence contains all the ingredients of a valid Promissory Note as defined in section 4 of the Act.- In the light of above discussion, there is no legal requirement of attestation of a promissory note or cheque by two witnesses.
9. Learned counsel for the appellant/defendant has also taken this objection that the adhesive stamps, affixed on the promissory note Exh.P-1, were not signed by the respondent/plaintiff and, as such, the same were not properly cancelled therefore, under Section 12(2) of the Stamp Act, 1899, promissory note Exh.P-1 was inadmissible in evidence. I have perused the promissory note Exh.P-1 and noted that all the adhesive stamps, affixed on it, have duly been crossed by drawing two lines on the face of the stamps, crossing each other. There is no legal compulsion that in all cases, the said stamps should bear the signatures of a party to the said document. The same may be cancelled through "any other effectual manner" as provided under Section 12(3) of the Act ibid which reads as under:-- "The person required by subsection (1) to cancel an adhesive stamp may cancel it by writing on or across the stamp his name or initials or the name or initials of his firm with the true date of his so writing, or in any other effectual manner."
(bold and underlining supplied)
In the cases of of Mst. Sajida Abbas Zaidi v. Syed Arshad Ali Jafri' (1990 CLC 1018), 'Messrs United Bank Limited, Karachi v. Muhammad Ali Haji Kassim Ali' (1987 CLC 2321), 'Hafizullah v. Haji Hussain Bakhsh' 1990 CLC 603 and 'Habib Bank Ltd. v. Raw Sons and another PLD 1978 Kar. 425, it was held that drawing of one line or drawing of two lines across the face of an adhesive stamp, is an effectual cancellation.
Even otherwise, The Stamp Act, 1899, was a revenue collecting law and the object of cancellation of stamps was only that the same might not be used again on any other document. Provisions of the Stamp Act, 1899 were not intended to deny the vested rights of the parties and to punish the beneficiary of a promissory note merely on the technical grounds. Reliance in this respect may be placed on the case reported as "Qazi Abdul Ali and others v. Khawaja Aftab Ahmad' (2015 SCMR 284), wherein at pages Nos. 288, 289, 290 and 291, it was observed as under:-- "The learned trial Court keeping in view all the attending circumstances had come to a definite conclusion and had decreed the suit. However, the learned High Court took a different stand and has held, that as the adhesive stamps on the pro note were not properly cancelled thus in terms of section 12 of the Stamp Act, 1899, the document was insufficiently stamped and the appellants could not have filed suit under Order XXXVII, C.P.C. before the trial Court. While passing the impugned judgment, the learned High Court did not take into consideration the fact that Stamp Act is a revenue collecting law and the object of cancelling of stamps is only that the same might not be used again on any other document. The provisions of law are not intended to deny vested rights of the parties and to punish the beneficiary of pronote. According to section 12(3) of the Stamp Act "the person required by subsection (1) to cancel an adhesive stamp may cancel it by writing on or cross the stamp his name or initials or the name or initials of his firm with the true date of his so writing, or in any other effectual manner." We have gone through the pronote and found that out of 20 adhesive stamps only two have not been crossed/cancelled. Section 12(2) of the said Act provides that "any instrument bearing an adhesive stamp which has not been cancelled so that it cannot be used again, shall, so far as such stamp is concerned, be deemed to be unstamped ".'From the bare perusal of this provision it is clear that the instrument would be deemed to be unstamped only to the extent of stamps which had not been cancelled. As only two stamps . were not cancelled, the pronote in question was insufficiently stamped only to the extent of those stamps. In such a case, the same could be admitted in evidence on payment of penalty provided under law but it could not be held that pronote in question which was insufficiently stamped could have formed the basis of rejection of claim of the appellant/plaintiff. Payment of stamp duty is a matter between a citizen and the State and an adversary could not be permitted to capitalize on a technicality, which otherwise was not fatal to the suit. According to section 36 of the Stamp Act, 1899, document once admitted in evidence could not be challenged at any stage of proceedings on the ground for not being duly stamped except under section 61 thereof. In Ch. Muhammad Saleem v. Muhammad Aram and others (PLD 1991 SC 516) the question as to whether an agreement which was not stamped can be admitted in evidence or not came up for consideration and this Court while relying on an Indian case-law, with approval, has held that "once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, section 36 comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial Court itself or to a Court of Appeal or Revision to go behind that order" Similarly in Union Insurance Company of Pakistan (Pvt.) Ltd v. Muhammad Siddique (PLD 1978 SC 279) wherein the issue was relatable to an unstamped arbitration agreement, this Court has specifically held as under:-- "Section 35, Stamp Act, 1899 prescribes that no instrument, which is not properly stamped, "shall be admitted in evidence for any purpose or shall be acted upon... " Now merely because an instrument cannot be admitted in evidence for any purpose as because it cannot be acted upon by the persons specified in the section, does not mean that such an instrument is invalid, and it is not irrelevant to observe here that the words have to be construed strictly, because they are to be found in a provision of a penal nature. Therefore, it would be against all canons of construction to enlarge the meaning of these words, so as to render invalid instruments which fall within the mischief of the section. After all, instruments, which are not duly stamped, are executed every day, and most persons; who incur obligations under such instruments, honour their liabilities under such instruments, regardless of the provisions of section 35. In any event, this section is attracted only when an instrument is produced before the persons specified in the section. But, for example, an instrument would be produced in evidence only when there is a dispute about it, therefore, if the intention of the Legislature had been to render invalid all instruments not properly stamped, it would have made express provision in this respect, and it would also have provided some machinery for enforcing its mandate in those cases in which the parties did not have occasion to produce unstamped instruments before the persons specified in the section. Additionally, there is nothing in the section which would support the plea that an instrument becomes invalid, if it falls within the mischief of the section. After all, if an instrument is invalid, it must be invalid for all purposes, but proviso (d) to the section expressly saves unstamped instruments in most criminal proceedings, whilst the other provisos to the section enable the parties to overcome the disabilities attached to an instrument not property stamped by paying the requisite duty together with a penalty, therefore, this would suggest that the object of the section is to protect public revenue. Again, if an instrument is invalid it should not be admissible in evidence and it is so stated in section 35. But the next section prescribes that if an instrument has been admitted in evidence, howsoever erroneously its admissibility cannot be questioned at any stage thereafter, and even the appellate Court's power to entertain an objection about the admissibility of documents have been removed by section 61, which instead empowers the appellate Court to collect the duty payable on the unstamped instrument together with a penalty." (Emphasis is supplied)
7. In Farid Akhtar Hadi v. Muhammad Latif Ghazi (1993 CLC 2015) one of the issues was with regard to admissibility of a document on which some of the stamps were not cancelled and the learned Court after discussing a number of case-law had come to the conclusion that "an instrument once having been admitted in evidence is immune from challenge on the ground that it was under- stamped or the stamps were not cancelled properly. In Munir Ahmad Kahloon v. Rana Muhammad Yousaf (PLD 2003 Lahore 173) the pro note in question bore 25 adhesive stamps on it and out of those 25, two were not crossed/cancelled. The learned High Court has held that the instrument would be deemed to be unstamped only to the extent of stamps which had not been cancelled; that provisions of section 12 of the Stamp Act have been substantially complied with; pro note could be admitted in evidence on payment of penalty and that "once the instrument was admitted in evidence, same could not be called in question at any stage of suit or . proceedings on the ground that it was not duly stamped except under Section 61 of Stamp Act, 1899." In Muhammad Hand v. Kissan Dost (Pvt.) Ltd. (2003 CLD 224), the plea raised by the defendant was that the stamps affixed on the pro note were not cancelled, therefore, the same is inadmissible document in evidence but the Court, came to the conclusion that "as the pro note was admitted in evidence without objection by the defendant at the relevant time the same could not be kept out of consideration at the time of deciding of appeal." Similarly in Manzoor Ahmed v. Qamar ul Zaman (2001 CLC 1756) the suit for recovery of money on the basis of pronote was dismissed by the learned trial Court on the ground that pronote was inadmissible in evidence due to non- cancellaion of one of adhesive stamps but the learned High Court accepted the appeal filed by the plaintiff and has held that"according to section 36 of the Stamp Act, 1899, document once admitted in evidence could not be challenged at any stage of proceedings on ground for not being duly stamped except under section 61 thereof. Defendant in written statement had not raised objection regarding non-cancellation of questioned stamp. Plaintiff could not be non- suited on technical ground." ' In the case in hand, the appellant/defendant in his written statement has not raised any objection regarding the non-cancellation of adhesive stamps on the promissory note Exh.P-1 therefore, the respondent/plaintiff cannot be non-suited on the aforementioned technical ground.
It is also noteworthy that promissory note Ex.P-1 was admitted in evidence without any objection on the part of the appellant/defendant. According to Section 36 of the Stamp Act, 1899, "if a document is admitted in evidence then the same could not be challenged at any stage of the proceedings on the ground of not being duly stamped, except under Section 61 of the said Act." As the appellant/defendant did not raise any objection at the time of admission of promissory note Ex.P-1 in evidence therefore, under Section 36 of the Act ibid, he cannot raise any objection at this belated stage. Reference in this context may also be made to the cases reported as 'Sheikh Muhammad Shakeel v. Sheikh Hafiz Muhammad Aslam' (2014 SCMR 1562), 'Munir Ahmad Kahloon v. Rana Muhammad Yousaf (PLD 2003 Lahore 173), 'Muhammad Ashiq and another v.
Niaz Ahmad and another' (PLD 2004 Lahore 95) and Muhammad Shafi v. Sheikh Riaz-ud-Din and another (2004 YLR 1669).
10.Insofar as the objection of learned counsel for the appellant/ defendant regarding the non- consideration of the ground of weak mental condition and immaturity of the appellant/defendant by the learned trial Court, is concerned, I have noted that although this ground was taken by the appellant/defendant in his written statement but while appearing in the witness box as DW-1, the appellant/defendant did not utter even a single word in this respect. No Medical Certificate regarding the weak mental condition or immaturity of the appellant/defendant was produced in evidence. Even no oral evidence in this respect was produced by the appellant. I have also noted that the appellant/defendant himself appeared in the witness box as DW-1 and there is nothing in his evidence to demonstrate that he was having weak mental condition or immaturity or he was suffering from any mental disorder/ailment, therefore, there is no force in the abovementioned objection or learned counsel for the appellant.
11.The appellant/defendant also took this stance that he had friendly relations with one Asim who was real brother of the respondent/plaintiff. Asim asked him (appellant/defendant) that his brother Tahir Qasim (respondent/plaintiff) was not ready to give him the money and as he (appellant/defendant) had good relations with the respondent/plaintiff therefore, if he takes money from the respondent/plaintiff, then he (Asim) would return the same to him (appellant/defendant). As a guarantee for the repayment of loan amount, Asim handed over to him (appellant) a cheque of Rs,6,25,000/- which was Exh.D-1. The appellant/defendant therefore, made a request for loan to the respondent/plaintiff who agreed to pay the same and obtained signature and thumb impression of the appellant/defendant on a blank receipt. After obtaining signature/thumb impression, he (respondent/plaintiff) promised that the payment will be made on the next day but on the following day, respondent/plaintiff told the appellant/defendant that he had already handed over the amount to his brother Asim. It was further stated by the appellant/defendant that a fraud was committed with him by the respondent/plaintiff and his brother Asim.
' The veracity of the stance of the appellant, in respect of obtaining his signature and thumb impression on a blank receipt, has already been discussed in para. No, 7 above. I have also noted that learned defence counsel has himself put different questions during the cross-examination of respondent/plaintiff and brought on the record that at the time of execution of promissory note Ex.P-1, relations between the respondent/plaintiff and his brother Asim were very strained due to family disputes. It was also brought on the record that the respondent/plaintiff and his brother Asim were not even on speaking terms. It is therefore, established that the question of defrauding the appellant/ defendant by the respondent/plaintiff in connivance with his brother was not probable in the light of aforementioned strained relationship between them. Above mentioned fact regarding the strained relationship of the respondent with his brother Asim is also established from the written statement filed by the appellant/defendant himself, as well as, from his statement made before the Court, wherein it was specifically stated that brother of the respondent/plaintiff, namely, Asim asked the appellant/ defendant that the respondent/plaintiff was not ready to give him (Asim) the money therefore, he (appellant/defendant) should obtain money from the respondent/plaintiff. Insofar as the cheque Exh.D-1, issued by abovementioned Asim in favour of the appellant, is concerned, the said matter is between the appellant and the said Asim. The appellant may file a suit under Order XXXVII, Rule 2 of C.P.C. against the above mentioned Asim for the recovery of amount mentioned in the said cheque. The respondent has no concern with the said cheque, therefore, the same cannot be used against him.
12. The judgments cited by learned counsel for the appellant/defendant, reported as 'Mst. Sajida Abbas Zaidi v. Syed Arshad Ali Jafri' (1990 CLC 1018), 'Mirza Arif Baig v. Mubarik Ali' (PLD 1992 Lahore 366), 'K.M. Muneer v. Mirza Rashid Ahmad' (PLD 1963 (W.P.) Karachi 905) and Arjumand Azhar and others v. Salim Akhtar Khan and others' (2004 YLR 2368), regarding the inadmissibility of promissory note on the ground of non-cancellation of adhesive stamps,affixed on it, are not helpful to the case of the appellant/defendant in the light of discussion in para-9 of this judgment and the judgments passed by the Hon'ble Supreme Court of Pakistan in the cases of Vazi Abdul All and others (2015 SCMR 284) and 'Sheikh Muhammad Shakeel v. Sheikh Hafiz Muhammad Aslam'
(2014 SCMR 1562), supra. Similarly, learned counsel for the appellant/defendant has also placed reliance on the cases reported as Asif All and 6 others v. Saeed Muhammad (2009 CLD 1301) and 'Malik Liaqat Ali v. Muhammad Sharif' (2009 CLD 1313), to embellish his arguments that presumption under section 118 of the Negotiable Instruments Act, 1881, was not conclusive presumption, rather the same was rebuttable in nature, but the facts of the aforementioned cases are distinguishable from the facts of the present case.. In the case of 'Malik Liaqat Ali' (2009 CLD 1313) supra, the suit filed by the plaintiff on the basis of promissory note was decreed by the trial Court and inspite of above mentioned observation under section 118 of the Act ibid, the appeal filed against the judgment and decree of the learned trial Court was dismissed by this Court, whereas, in the case of Asif Ali and 6 others (2009 CLD 1301) supra, the suit on the basis of cheque was not filed during the life time of the defendant and the concerned Bank Officer was unable to state, if the signature on the cheque belonged to the defendant or otherwise, whereas, in the instant case the signature and thumb impression of the appellant/defendant, on the promissory note Ex.P-1 are admitted by the appellant himself, therefore, the above mentioned judgments are of no help to the case of appellant.
13. In the light of above discussion, there is no substance in the present appeal therefore, the same is hereby dismissed.