CH. MUHAMMAD MASOOD JAHANGIR, J.---Verily, subject property measuring 98 Kanals falling in Khewat No,22 of Mouza Rakh Mari, Tehsil Rajanpur was owned by two brothers, namely, Muhammad Hanil, Muhammad Latif and their mother Maqsood Mai (hereinafter to be referred as promisors). Aziz Ullah, plaintiff now deceased represented through present appellants (hereinafter to be referred as promisee) instituted a suit for declaration while claiming his exclusive ownership with regard to property on the basis of alleged sale settled among them through agreement dated 11.11.1996 (Exh. P-1) with the assertion that it was purchrced by him against a consideration of.
Rs,12,00,000, the possession whereof was also handed over to him after paying the entire price and in alternate he prayed for the relief of specific performance of the same. The suit was not only contested by promisors with the stance that on 20.01.1996 the promisee had illegally taken over the possession of their residential house against whom case F.I.R. No,35 of 1996 was got registered at Police Station Saddar Rajanpur and was arrested therein; that another criminal case was also lodged against him for devastating their crops forcibly and that neither any transaction qua sale of the subject property among the parties followed by the disputed agreement was settled nor consideration was received on their part. They also lodged their independent suit while asserting their possession as well as ownership and prayed for the cancellation of agreement being forged, fictitious and fraudulent document. After settlement of issues and recording evidence of the parties, the learned Trial Court in terms of its consolidated judgment dated 29.10.2003 decreed the suit of the promisee and dismissed the rival suit of the promisors, which was successfully assailed by the latter through appeal and the learned Additional District Judge, Rajanpur on 28.06.2004 while setting aside the judgment of the Court of first instance not only dismissed the suit of the promisee, but the other one of his rivals was decreed, which is under resistance of this appeal.
2. Inaugurally, it is submitted by Mr. Habib Ullah Nehang, Advocate, learned counsel for the promisee that while applying philosophy laid down in Article 79 of the Qanun-e-Shahadat Order, 1984, the promisee fully proved the basic agreement (Exh P-1) through examination of its two attesting witnesses (PWs 2 and 3) and the Deed Writer (PW-4), whose statements are harmonious with regard to the settlement of bargain, payment of sale consideration and its construction and the learned Trial Court after due appreciation of the same was perfect in decreeing the suit, whereas the learned Lower Appellate Court erroneously dismissed the same on the sole ground that the agreement (Exh. P-1) was exhibited in the statement of his counsel despite the fact that it was tendered without any objection and that the findings of learned Additional District Judge to the extent that (Exh. P-1) could not be proved was erroneous, who failed to appreciate the deposition of the related witnesses. He further added that at the time of execution of contract in revenue record the name of predecessor of the promisors was wrongly mentioned, therefore, property in dispute could not be transferred to the promisee and the agreement was executed with the mutual understanding that after its correction, the same will be transferred to the latter, but despite the requisite correction, the former did not fulfill their obligation, whereupon the promisee was constrained to invoke the jurisdiction of the Court of law for its enforcement by filing a civil suit which was wrongly dismissed by the learned lower Appellate Court through the impugned judgment.
3. On the contrary, Rana Muhammad Nazir Saeed, Advocate, learned counsel for the promisors submitted that the promisee was a land-grabber who on account of illegally occupying the residential houses of the promisors was arrested and during subsistence of criminal litigation it could not be expected that a mutual transaction could be struck among them without the intervention of some other person(s) and that too without transfer of title in favour of promisee despite making of the entire payment. He further added that the disputed document was forged and fictitious, which was neither scribed by a license holder Deed Writer nor the stamp paper was purchased by the promisors. Moreover, the Stamp Vendor was also not examined and the learned lower Appellate Court was perfect in dismissing the suit after well appreciation of the material available on suit file, whose judgment was also to be given preference over the judgment of his subordinate Court.
4. Due consideration paid to the arguments of learned counsel for the parties and record of the learned Trial Court scanned.
5. The bone of contention among the parties is agreement (Exh.P-1) and despite' the fact that its marginal witnesses as well as the scribe were examined, but it could not be marked or assigned any exhibit number, which was done when learned counsel for the promisors subsequently made his statement for closure of evidence. The learned lower Appellate Court at para No, 13 of the impugned judgment took serious view of the fact that it was not given any exhibit number in the statements of its signatories and author, which reads as under:- .... The learned Trial Court after going through the evidence of the parties has declared that the respondent No,1 has established the execution of this agreement to sell. But perusal of the file does not support the conclusion reached at by the learned Trial Court. The alleged agreement to sell Exh. P-1 is a private document. But it has been produced in the evidence through the statement of the learned counsel for the respondent No,1, which could not be exhibited under the law. The scribe and the marginal witnesses of the alleged agreement to sell have deposed that an agreement to sell was executed but they have not stated that the said agreement to sell was Exh. P-1. As such their statements are vague and do not relate to Exh. P-1. Neither the scribe nor the marginal witnesses have stated that Exh. P-I is the agreement .to sell which was allegedly executed by the appellant. As such it is declared that agreement to sell Exh. P-1 is not proved according to law."
6. Before embarking upon merits of the case, it is necessary and appropriate to assimilate the true meaning and purport of word "Exhibit" as well as its object and effect. After consulting various dictionaries, I have come to the conclusion that it means a document or tangible object produced before the Court for its inspection or shown to a witness while giving evidence or referring the same in his deposition so that it could be taken into possession and retained by the Court on the lis file for reference as well as identification in the judgment and when a party intends to prove a document through witnesses, he only refers that document for its proof, then the Court exhibits the same. The witness has no role in marking the document as exhibit rather it is the sole duty of the Court to assign exhibit number to it so that in the latter part of the proceedings it may be referred and identified from said number, so ex hypothesi exhibit means a document exhibited for the purpose of being taken into consideration in deciding some question or other in respect of proceedings in which it is filed. Any question with regard to admissibility of a particular document for the purposes of the proceedings must be decided at the time when the document is tendered and before it is actually marked as an exhibit, whereas its proof is altogether a different subject, which is going to be discussed in latter part of the judgment. After going through the evidence, it is revealed that Ghulam Qasim (PW-2), one of the marginal witnesses of Exh. P-1 while making his statement-in-chief stated as under:- {{URUD TEXT}} In same terms the other attesting witness Muhammad Ramzan (PW-3) deposed as follows:- {{URUD TEXT}} The Deed Writer, Muhammad Abbas (PW-4) also followed PW-2 and PW-3, when while referring the contract in his statement he uttered that:- {{URUD TEXT}} This all shows that the reference of the document was explicitly made by all the relevant witnesses and the omission that it was not labeled with exhibit number could not score out the document from its consideration at the time of final adjudication. Moreover, the perusal of Exh. P-1 reveals that it was not only tagged with the file but marked being Exh.P-1 on 14.03.2000 when statements of PW- 2 to PW-4 were recorded. So, it is clear that due to some omission on the part of the Court, the exhibit number could not be referred to despite the fact that the document was so assigned and to rectify the omission, on 13-4-2000 the learned counsel for the promisee was allowed to make a reference of Exh.P-1 in his statement without any objection. Ultimate conclusion of the said discussion is that above referred finding of learned Additional District Judge does not appear to be justified to that extent.
7. Resuming to the facts of the case, it is an admitted fact that alleged agreement (Exh. P-1) was scribed after the promulgation of Qanun-e-Shahadat Order, 1984 and being beneficiary the onus probandi to prove the same was upon its beneficiary. The principles regarding burden of proof are enumerated in Articles 117 to 120 of the Order ibid, which read as under:-
117. Burden of proof (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
118. On whom burden of proof lies. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
119. Burden of proof as to particular fact. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
120. Burden of proving fact to be proved to make evidence admissible. The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.
It is vivid from the perusal of the afore-referred provisions of law that Party to the lis through the modes provided there-under could prove a fact and once initial onus has been discharged by the party upon whom it was resting, it would shift to the other party for its rebuttal thereof or for the proof otherwise. The case of the promisee hinges on agreement (Exh.P-1) and it relates to matter of financial and future obligation, which mandated that it must be attested in terms of Article 17(2)(a) of the Order ibid, the contents whereof could only be proved at least through examination of two male marginal/attesting witnesses. The attesting witness is one, who not only sees document being executed, but also appends his signature/thumb impression on it after understanding its contents and if the said attesting witness while appearing in the witness-box to prove the contents of document fails to depose that what were the contents of the document or could not verify his signature/thumb impression, then he cannot be treated an attesting witness. So under the philosophy of afore-referred Article, if a document of such nature is not attested by the required number of witnesses or could not be proved by the said witnesses, it shall not be used as piece of admissible evidence. No doubt, Exh.P-1 was attested by required number of witnesses and to ascertain whether beneficiary succeeded to prove its contents as well as the transaction reflected therein requires its reappraisal by this Court as both the Courts below scanned it with different angles.
8. The basal document/agreement (Exh.P-1) was executed on a stamp paper and study of the original one available on the suit file reveals that it was issued only in favour of Muhammad Hanif and Muhammad Latif, whereas their mother's name was not shown by the Stamp Vendor while making an endorsement on its back, when the same was issued. The most alarming fact was that it was not signed and thumb marked by any of the promisors. The doubt about its issuance due to non-signing of its purchasers could be diluted through examination of the Stamp Vendor, but surprisingly he was withheld without any excuse. The submission of learned counsel for the promisee that the Stamp Vendor might have omitted to obtain thumb-impressions of the purchaser and on this score alone the genuineness of its issuance could not be disputed is not correct. The promisors were disputing execution of the agreement from its inception and in such situation, the promisee was under obligation to prove every aspect of its construction. Moreover, the alleged omission on the part of Stamp Vendor could only be proved through examination of his Stamp Vending Register and on account of its non-production in spite of availability, the inference under Article 129 illustration (g) of the Qanun-e-Shahadat Order, 1984 has to be drawn against the promisee. The other independent person, who scribed it was, however, examined by the beneficiary, who being PW-4 explicitly admitted that neither the promisors were earlier known to him nor sale consideration was paid in his presence and he also conceded in his cross- examination that he joined the inquiry conducted by GAR/MIC regarding genuineness of Exh.P-1 but despite asking he could not give the detail of said proceedings, whereas the promisors brought on record certified copy of PW-4's statement (Ex.D-5) made before the Magistrate, which was duly signed by him and its perusal reveals that therein he absolutely denied to have scribed and signed it. This document could not be rebutted by the promisee, which being copy of judicial record attained strong presumption of truth. Moreover, both the attesting witnesses (PWs 3 and 4) neither could give the exact date of the execution of Exh.Pl nor could explain the description, of the disputed property for which the sale .consideration was paid to the promisors, even they failed to highlight its terms and conditions.
9. It was the defence of the promisors that earlier the promisee along with others forcibly occupied their house on 20.01.1996 and in this regard, FIR No,35 was lodged against them on 13.03.1996, who during its investigation remained behind the bars and for taking revenge, a false suit with regard to the subject property was instituted. The promisee being PW-1 conceded that he was arrested in the said criminal case. This fact was also admitted by other witnesses of the promisee. A prudent man cannot believe that when, on one hand, criminal litigation was going on between the parties, then, on the other hand, an agreement without intervention of some respectable was settled and the accused of a pending criminal case paid entire sale consideration to the complainant of said case without getting the property transferred in his name or execution of any registered instrument in this behalf. The submission of learned counsel for the promisee that the property in dispute could not be transferred in favour, of the promisee despite making entire sale consideration as the parentage of promisors Nos, 1 and 2 and that of husband of promisor No.3 was wrongly mentioned in the revenue record, is not tenable on two counts; firstly; that the promisee nowhere asserted the said ground in his plaint and secondly he while appearing in the witness-box being PW1 in response to a question surprisingly replied that property was not transferred in his favour because he had no more funds to pay the mutation fee. The relevant glimpse of PW-1's statement is reproduced here under:- {{URUD TEXT}} The same stance was also deposed by the attesting witness (PW-2) with following words:- {{URUD TEXT}} It is not believable that a person having such a financial status, who paid a huge amount without its withdrawal from the Bank did not have a petty amount to pay as government fee for its transfer in his favour.
10. The accumulative effect of the appreciation of evidence on record and discussion supra is that this appeal bounds to fail, which is dismissed with cost throughout.