HABIB ULLAH AM IR, J.-- Through this revision petition, petitioner has assailed judgments, and decrees dated 10.2.2011 of learned Civil Judge. Chunian whereby suit for specific performance of agreement instituted by Muhammad Ali respondent No, 1 was decreed and dated 20.1 2015 passed' by learned Additional District: judge Chunian who dismissed the appeal of petitions.
2. The facts in brief of this' case are that respondent No, 1/plaintiff instituted suit for possession through specific performance against petitioner and another. The suit was controverted by petitioner/defendant and on The divergent pleadings of parties learned Civil Judge framed following issues:-
(1) Whether the disputed land mortgaged with Agriculture Bank defendant No, 2 and defendant No, 1 has no right to sell the same OPD?
(2) Whether this Court has no jurisdiction to entertain this suit as disputed land is mortgaged?
OPD (3)Whether lqrarnama is false, frivolous and is not maintainable? OPD-1 (4)Whether the suit is based on wrong facts and defendants No, 1 and 2 are entitled to the special costs in the sum of Rs, 20,000/- u/s. 35-A, CPC? OPD (5)Whether the disputed land 4-Kanals 9-Marlas was sold out by defendant No, 1 in consideration of Rs, 62,000/-? OPP (6)Whether the plaintiff is entitled to the decree for possession through specific performance as prayed for? OPP (7)Relief.
3. After framing of issues and hearing parties, learned Civil Judge decreed the suit by passing judgment and decree dated 10.2.2011 and feeling aggrieved, petitioner preferred appeal which remained pending in . the Court of learned Additional District Judge, Chunian but the same met with the fate of dismissal, hence this revision petition.
4. Learned counsel for- petitioner contends that impugned judgments and decrees of courts below are against law, facts of case and courts below have failed to take notice of the latest pronouncements of apex Court that it is mandatory requirement of law that without producing two marginal witnesses in proof of execution, agreement to set cannot be said to have been proved: that it has failed to be appreciated that scribe of agreement to sell cannot take place of marginal witness and respondent No, 1 failed to prove the payment of consideration price and in the end ii has been prayed that this revision petition may be accepted, impugned judgments and decrees of the courts below may be set aside and suit of respondent No, 1may be dismissed.
5. On the other hand learned counsel for respondents has vehemently controverted this revision petition.
6. I have heard learned counsel for parties and perused the file.
7. Respondent No, 1 Muhammad Ali has averred n suit for specific performance of agreement against Muhammad Rafiq etc. that Muhammad Rafiq agreed to sell his property having been fully described in the caption of suit for consideration of Rs, 62000/- and handed over possession of property to him while he also received Rs, 40,000/- as earnest money and vide agreement dated 5.1.2003 agreed that till 6.2.2003 by receiving remaining consideration price, he shall transfer property in dispute in `avour of plaintiff. However, Fard Malkiyat could not be received from concerned Patwari, therefore. transfer could not take place and on the said date, i,e, 6.2.2003 defendant -received Rs, 22,000/- and agreed that till 20.2.2003 property shall be transferred in the name of plaintiff. However. despite request of plaintiff, defendant failed to transfer property in dispute to plaintiff but with mala fide and in connivance with his brothers mortgaged property with Agricultural Development Bank of Pakistan (ADBP) against Rs, 96000/- as loan and ultimately defendant refused to transfer property in favour of plaintiff and, thus. petitioner was constrained to File a suit against defendant. The suit was contested on different grounds and defendant categorically controverted the sale agreement and denied receipt of consideration price.
Respondent/plaintiff produced Syed Najam-ul-Hassan P. W. 1 who deposed that agreement to sell dated 6.1.2003 Exh.P 1 was in his handwriting which was duly incorporated in his relevant register.
He alongwith parties and attesting witnesses attested the same and as per contents of Exh.P.1 Rs, 40,000/- were received by defendant in his presence and presence of witnesses and writing on back of agreement receipt Exh.P1/1 was also signed by the parties in his presence. P.W.2 Muhammad Ali appeared in the witness box and deposed that defendant agreed to sell land measuring 4 Kanals 09 lvianas for consideration of Rs, 62 000/- in his favour and Exh.P.1 was executed which was reduced into writing by P. W.1 under the direction of Muhammad Rafiq and at the time of execution of Exh.P.1 Ps. 40.000/- were paid to defendant by him in presence of witnesses, while possession of land was handed over after the execution of Exh.P.1. He also deposed that Exh.P.1 was read over to the parties by P. W.1 and he along with witnesses attested Exh.P.1 while remaining amount was paid to defendant on 6.2.2003 in presence of P. W.1 and witnesses. Marginal witness Bashir Khan passed away on 6.2 2007. P. W.3 Shaukat Ali deposed that Exh.P.1 was written in his presence which was attested by him and at the time of execution he alongwith Muhammad Rafiq, Muhammad Ali and Bashir Khan was present. Bashir Khan passed away. Exh.P.1 was reduced into writing by Syed Najam-ul-Hassan thereafter they attested the same while in his presence and in presence of Najam ul-Hassan, defendant was paid Rs, 40.000/- and Exh.P.1/1 was also attested by him. Plaintiff also produced Exh.P.1 to Exh.P.11 as documentary evidence. In rebuttal, Muhammad Rafiq defendant himself appeared in witness box and deposed that he had not executed agreement to sell with plaintiff and no consideration amount was received by him.
8. Agreement to sell Exh.P.1 has been perused which reflects that Shaukat Ali and Bashir Khan are marginal witnesses of document whereas P.W.1 Syed Najam-ulHassan signed the said document ,along with receipt Exh. P 1/1 as scribe while plaintiff has produced P. W. 3 to prove execution of agreement to sell and receipt Exh.P 1/1. However no one has been producers in evidence to prove the thumb impress of Bashir Khan son of Khuda Bakhsh. Articles 17 & 79 of the Qanun-e-Shahadat Order. 1984 are reproduced hereunder:--- "17 Competence and number of witness.--(1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah.
(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.
79. Proof of execution of document required by law to be attested. 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 providing its execution, if there be two attesting witnesses alive. and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will. which has been registered in accordance with the provision of the Registration Act, 1908 (XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied.
9. Defendant in his written statement has categorically denied that he had executed agreement to sell favour of plaintiff and had not received consideration mount. In such-like situation onus to prove agreement would lie on plaintiff unless its existence is admitted by defendant. In this connection. reliance is placed on "Mst. Rasheeda Begum and others v. Muhammad Yousaf and others" (2002 SCMR 1089). In this case defendant had categorically denied execution of agreement to sell, therefore, plaintiff was burdened to prove execution of agreement to sell by producing legal evidence and in order to substantiate his claim that agreement to sell was executed by defendant in favour of plaintiff he has produced the scribe of document Syed Najam-ul-Hassan who deposed that agreement to sell along with receipt were reduced into writing by him in presence of parties and witnesses while marginal witness Shaukat Ali also appeared as P. W.3 and deposed that he had attested the agreement to sell alongwith receipt.
Plaintiff as P. W2 has deposed that agreement to sell was entered into between the parties for a consideration of Rs, 62,000/- and agreement to sell was reduced into writing by Syed Najam-ul- Hassan under the direction of Muhammad Rafique and receipt of payment was also reduced into writing by P. W.1 which was attested by P. Ws. Law has required attestation of a document like agreement to sell to be proved by producing two attesting witnesses and object of attestation of document by certain number of witnesses and its proof through them is meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and thus legislature in its wisdom has established class of documents which are specified in Article 17 of the Qanun-e-Shahadat Order, 1984 and for validity of instruments falling within Article 17 of Qanun-e Shahadat Order, 1984, the attestation as required therein is absolute and imperative. For the purpose of proof of such a document, attesting witnesses has to be compulsorily examined as per requirement of Article 79 of Qanun-e-Shahadat Order, 1984. otherwise it is not be considered and taken as proved and used in evidence and such principle of law is in line with the principle that where law requires an act to be done in a particular manner. it has to be done in that way and not otherwise. In his connection reliance is placed on the case reported as Hafiz Tassaduq Hussain v. Muhammad Din through Legal -lairs and others" (PLD 2011 S.C. 241). As to whether Vaintiff by simply stating that other marginal witness has lied does not absolve him from his duty of proving the agreement to sell by producing secondary evidence and answer to such a situation has been answered in the case exported as "Miran Bukhsh v.
Muhammad Ismail and others" 2016 YLR 420) wherein it has been observed that execution )f document containing fiscal matters and future obligation is to be attested by two truthful witnesses, and the prove the execution of such document, the witnesses are to be produced before court. A marginal witnesses, in the present case, is reported to have died and mode of proving in such-ike cases is to lead secondary evidence like comparison of signatures and thumb impressions with admitted thumb impressions and signatures on other documents and objectors are required to prove signatures of dead witnesses through identification of their signatures from any one of their relatives like son, brother, etc. Mere statement of plaintiff regarding death of a witness does not exonerate plaintiff to over the contents of disputed document. Reliance can also 'e made in this regard to the case reported as "Anwar Ahmed v. Mst. Nafis Bano through Legal Heirs' (2005 SCMR ' t 52).
10. In the instant case, none of the witnesses produced by plaintiff deposed that he could, identify the hum impression of Bashir Khan deceased on the agreement to sell and receipt. The particular feature of this case is also that plaintiff himself produced affidavit of Muhammad Rafiq, Exh.P.3 and at the back of agreement to >ell there is writing to the effect that Muhammad Rafiq had undertaken that date of fulfillment of agreement to sell was )1.8.2003 but as plaintiff had got loan from ADBP, therefore, performance of agreement could not be complied with and hat on 15.1.2004 performance of agreement shall be ;completed and by way of such document he acknowledged that he received Rs, 62.000/- from plaintiff and P. W.3 Shaukat All deposed that affidavit was also reduced into writing which bears his signatures as Ex.P.3/1 and affidavit was also attested by defendant and him. However, affidavit. Exh.P.3 does not bear the signatures of P.W.3 Shaukat Ali and on the back of Exh.P.3 it finds signatures of Nazar Khan son of Khuda Bakhsh and to prove affidavit of Muhammad Rafiq, Exh.P.3 though Shaukat Ali has appeared in the witness box, however, Nazar Khan. the other attesting witness has not been produced in witness box. Nazar Khan has not been produced by plaintiff in the witness box to prove Exh.P.3 despite of the fact that he is still alive and no justification has been brought on record that why he was not produced in witness-box. Under the law it can be inferred that best evidence has been withheld and that if Nazar Khan was produced in witness box he would have not supported the version of plaintiff Plaintiff was bound to prove execution of Exh.P.3 by producing two witnesses but only Shaukat Ali has been produced but Nazar Khan, the other witness who is still alive has been withheld by plaintiff Plaintiff despite having been burdened to prove execution of Exh.P.3 by not producing marginal witness withheld the best evidence and in this way plaintiff could not prove execution of Exh.P.3 alongwith acknowledgement of plaintiff to the effect that he had received Rs, 62,000/- and that in future he shall not claim consideration price from defendant. Learned Additional District Judge. Chunian observed that plaintiff successfully filled the vacuum by not producing second marginal witness. however, this observation of learned Additional District Judge, chunian is not according to law as it is now settled principle of law that scribe of an agreement to sell of immovable property is not a substitute for an attesting witness, and does not legally qualify to be so. therefore. his evidence may have a supportive value, but is neither in line with the mandate of law nor does it meet the test of Article 79 of the Qanun e-Shahadat Order. 1984. In this connection, reliance is placed on the judgment reported as "Farzanci Ali another v. Khuda Bakhsh and others"
(PLD 2015 S.C. 37) . It has also been observed in the case reported as 'arid Bakhsh v. Jind Wadda and others" (2015 SCMR )44) as under-- "Testimony of scribe could not be equated with that of an attesting witness as both of them had signed the document in different capacity and with a different state of mind---Scribe did not meet the requirement of Article 79 of Qanun-e-Shahadat Order, 1984--Scribe could be examined by the plaintiff for corroboration of evidence of attesting witnesses but not as a substitute."
11. It has also been observed in the afore-quoted judgment as under-- "--Nothing short of two attesting witnesses if alive and capable of giving evidence can even be imagined for proving its execution---Construing the requirement of Article 79 of Qanun-e- Shahadat, 1984 as being procedural rather than substantive and equating testimony of scribe with that of an attesting witness would not only defeat the letter and spirit of the Article 79 but reduced the whole exercise of re-enacting it to a farce---Provision of Article 79 of Qanun-e- Shahadat, 1984,being mandatory has to be construed and complied with as such."
12. However, in the instant case. document xh.P.3 along with acknowledgement of defendant to the effect that defendant had received consideration price from plaintiff has not been proved by producing two attesting witnesses, thus, evidence in the shape of Nazar Khan has withheld by plaintiff.
13. Agreement to sell Exh.P.1 depicts that at time f execution of same Rs, 40,000/- were received by defendant from plaintiff in presence of marginal witnesses Shaukat Ali and Bashir Khan and also in the presence of scribe of agreement to sell Syed Najam-ul Hassan.. Syed Najam-ul-Hassan, P.W.1, however, has frankly conceded that no money was paid in his presence. On the other hand, P. W.3 Shaukat All also deposed that Rs, 40,000/- and Rs, 22,000/- were paid by plaintiff to defendant in presence of Syed Najam-ul-Hassan P.W.1 but this fact had been contradicted by P.
W.1. scribe of agreement to sell. Similarly as per affidavit Exh.P.3 and also as per writing on back of Exh.P.3 defendant had acknowledged that he had received whole consideration amount from plaintiff and he shall transfer property in dispute in favour of plaintiff on 15.1.2004, however, only Shaukat All has been produced whereas Nazar Khan, the other marginal witness has been withheld and thus execution of Exh.P.3 has also not been proved by plaintiff. Plaintiff in this case has not only failed to prove execution of agreement to sell but also that total consideration price of disputed property had been received by defendant and thus the finding of learned courts below that plaintiff had proved execution of agreement to sell and that he is entitled to decree for specific performance of agreement to sell is against law and is not according to evidence on record and the learned courts below have committed error of law which has made grave injustice resulting in miscarriage of justice. Consequently, this revision petition is allowed, impugned judgments and decrees dated 10.2.2011 of learned Civil Judge, Chunian and dated 20.1.2015 of learned Additional District Judge, Chunian are set aside and suit for specific performance of agreement to sell is dismissed, with no order as to costs.