Muhammad Ameer Bhatti, J. Through this second appeal the appellant has questioned the judgments passed by both the learned Courts below through which his suit and first appeal were dismissed.
2. Appellant claimed to have purchased the suit land, owned by the respondent through an agreement to sell dated 07.09.2013, for consideration of Rs.6,21,936/27 out of which One Thousand Pounds (Rs.1,65,000/-) were paid through Cheque No.001049 as an earnest/advance money; agreement to sell was reduced into writing and duly signed by the vendor/respondent in prese nce of the witness namely Abdul Razzaq and Nazam Ali, son-in-law of the plaintif f also signed the document on his behalf. It is also averred in the plaint that when the agreement was scribed, son of plaintif f Amir Sultan was also present and on account of its non performance, a suit for specific performance was brought by the present appellant which was not contested by the respondent and the learned trial Court after recording ex-parte evidence dismissed the suit, appeal whereof also met with the same fate; hence this second appeal.
3. The learned trial Court while dismissing the suit held that the appellant has failed to produce second marginal witness of the agreement to sell; therefore, suit of the appellant could not be decreed. Besides another deficiency in proving the agreement to sell, noted by the learned trial Court was that the agreement was allegedly executed in England but neither it was attested by the Embassy nor any other authority of the foreign office. Learned first appellate court although persuaded from the second stance of the learned trial Court but did not agree on non-production of the marginal witness, therefore, learned counsel for the appellant contends that agreement to sell which was written between the parties privately was hardly required to be attested by the Embassy as it had not been sent or transposed to Pakistan through the Embassy, hence there was no need for its attestation.
4. On the other hand learned counsel for the respondent contends that although he had not joined the proceedings of the suit as his service could not be effected, however, he opposed the appeal of the respondent before the learned first appellate Court and also remained present before this Court in response to the notices issued by this Court while admitting this appeal and contends that on account of deficiencies of the material terms covenanted in the agreement to sell like non-fixation of time for performance of contract, payment of balance of sale consideration by vendee, mode of payment and delivery of possession of land by vendor to the vendee, such instrument could not be deemed to have legal existence and was not capable of enforcement. Reliance is placed on Fateh Muhammad vs Faqir Ullah (2001 CLC 801 ) and Mst. Mumtaz Majeed and 4 others vs Muhammad Inayat (2016 CLC 780 ).
5. I have heard the learned counsels for the parties and gone through record of the case. Although respondent had not attended the proceedings before the trial court but on account of dismissal of the suit he was left no option except to join proceedings at the appellate stage when he acquired the knowledge of pendency of appellant's appeal and contested the same on the basis of the available record and here before this Court did not opt to give any consent for remand of the case to decide it after providing him opportunity to cross-examine the witnesses of the present appellant produced at trial when this offer was made by the learned counsel for the appellant; hence this Court is left with no option except to examine and decide the matter on the basis of available record.
6. At the very outset I would like to dilate upon alleged agreement to sell (Exh.P-1) and it is expedient to reproduce its covenants as under:- "I Mr. Razaq son of Ghulam Nabi of Stoney Lane Birmingham am in agreement to sell the land which is 7 Kanal and 5 Marla situated in Chak 474 Pakistan to Mr . Shaukat Ali son of Godar Khan.
The agreed price for the sale of my share of the land is 621936.27 Rupees. A cheque deposit of 1000 has been put forward by Nazam Ali who is the son in law of Mr. Shaukat Ali and is acting on behalf of Mr. Shaukat Ali.
If either party breaks this agreement then they will be liable to pay 1000 with the seller paying an additional 1000 to the buyer as well as returning the 1000 deposit paid in advance by the buyer .
This agreement has been witnessed by Mr Nazam Ali who is the son in law of Mr Shaukat Ali and has handed a cheque to Mr . Razaq on 07/09/2013.
Signed by the Seller:Sd.
Date: 7/9/13 Signed by the Witness:Sd.
Date: 07/9/13.
Abdul Razzaq Amir Sultan."
It is clear and obvious from the body of the alleged contract that this agreement was witnessed by one Nazam Ali, son-in-law of the plaintif f Shaukat Ali and no other witness was cited in this allege d agreement to sell and against the column of 'singed by witness' only Nazam Ali had signed it. After that date has been mentioned as 07.09.2013 which reflects that at this point the agreement was closed and then signatures of Abdul Razzaq and Amir Sultan were tooled. Although Abdul Razzaq and Amir Sultan were produced as witnesses along with Nazam Ali as P.Ws. who claimed in their testimony that they witnessed execution of the agreement to sell and put their signatures as witnesses but from bare reading of contents of the agreement to sell their stand falsified, hence they cannot be considered as marginal witnesses.
7. On the other hand the plaintif f/appellant has set-up another case in plaint averring that Amir Sultan son of the plaintif f and Nazam Ali son-in-law of the plaintif f executed the agreement to sell on behalf of the plaintif f and Abdul Razzaq was cited as attesting witness which besides being contrary to the contents of the agreement to sell is enough to falsify the stand of the plaintiff/appellant, even if is presumed to be correct, it too says the attestation of the document by one witness i.e. Abdul Razzaq whereas the others viz Nazam Ali and Amir Sultan were alleged to have performed the duties on behalf of the vendor-plaintiff, hence could not be presumed to be attesting witnesses in view of the dictum laid down by Hon'ble Supreme Court in a case reported as Hafiz Tassaduq Hussain vs. Muhammad Din through Legal Heirs and others (PLD 2011 Supreme Court 241) wherein while placing reliance on Nazir Ahmad and another vs. M. Muzaffar Hussain (2008 SCMR 1639) and Qasim Ali vs. Khadim Hussain through legal representatives and others (PLD 2005 Lahore 654), it was held that, "a scribe of a document can only be a competent witness in terms of Articles 17 and 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."
It is also settled law that no one can be allowed to prove his case beyond the scop e of pleadings as enunciated by honourable Supreme Court in a case reported as Muhammad Wali Khan and another vs. Gul Sarwar Khan and another (PLD 2010 Supreme Court 965 ).
8. In addition to the above, form of agreement to sell stipulates one marginal witness, whereas Article 17 of Qanun-e- Shahadat Order, 1984, requires the attestation of the agreement to sell by two witnesses and to prove it, Article 79 of the Qanun-e-Shahadat Order , 1984, forces their production in order to prove the existence and contents of the agreement to sell. Said Article, derived from verse 282 of Sura Al-Baqra of Holy Quran , mandates as under:- "(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."
As stated, the provision contained in Article 17(2)(a) are based on verse 282 of Sura Al-Baqra. English translation of the same is reproduced below:- "O ye who believe! When ye deal with each other, in transactions involving future obligations in a fixed period of time, reduce them to writing. Let a scribe write down faithfully as between the parties. Let not the scribe refuse to write: as Allah has taught him, so let him who incurs the liability dictate. But let him fear his Lord Allah, and not diminish aught of what he owes. If the party liable is mentally deficient, or weak, or unable himself to dictate, let his guardian dictate faithfully. And get two witnesses, out of your own men, and if there are not two men, then a man and two wom en, such as ye choose, for witnesses, so that if one of them errs, the other can remind her. The witnesses should not refuse when they are called on (for evidence). Disdain not to reduce to writing (your contr act) for a future period, whether it be small or big: it is justice in the sight of Allah, more suitable as evidence, and more convenient to prevent doubts among yourselves, but if it be a transaction which ye carry out on the spot among yourselves, here is no blame on you if ye reduce it not to writing. But take witnesses whenever ye make a commercial contract: and let neither scribe nor witnesses suffer harm. If ye do (such harm), it would be wickedness in you. So fear Allah: for it is Allah that teaches you. And Allah is well-acquainted with all things."
The prerequisite of law is that the matter creating financial liability or obligation requires to be attested by at least two witnesses and accordingly to prove such document party has to lead the testimony of at least two attesting witnesses otherwise exclusion from consideration is obvious. In the present case except Nazam Ali, the other witnesses, who although were produced by the plaintiff but could not be termed as a marginal witness because the document is silent about their signatures as attesting witnesses. Mere signature of a person who has not signed the document in the capacity of attesting witness, shall not be deemed to have fulfilled the required compliance of Articles 17 & 79 of Qanun- e-Shahadat Order, 1984, therefore, said evidence is excluded to determine the validity of the agreement to sell.
Consequently, it is declared that non-attestation of the purported agreement to sell by two marginal witnesses, which is a sine qua non, exclude it from the term of 'document' defined in Article 17 of Qanun-e-Shahadat Order, 1984 and for its proof another condition of production of its two marginal witnesses under Article 79 of Qanun-e-Shahadat Order, 1984 is also mandatory, therefore, the suit of the appellant on the basis of the purported agreement to sell which contained attestation of one witness was not maintainable, therefore, it is held that the document which does not contain the attestation of two witnesses and if a suit for specific performance on the basis of said deficient document is filed, plaint shall be rejected in its inception as still born suit ought to be buried at its very inception and no time be consumed on fruitless litigation and that plaintiff would have a chance to retrace steps at the earlier possible time. Guidance in this context is sought from case-law reported in Farzand Ali and another vs. Khuda Bakhsh and others (PLD 2015 Supreme Court 187), wherein it has been held: "Considering the proposition if the agreement of the appellants was required to be proved by the examination of two attesting witnesses, it is settled law that an agreement to sell an immovable property squarely falls within the purview of the provisions of Article 17(2) of the Qanun-e-Shahadat Order , 1984, and has to be compulsorily attested by the two witnesses and this is sine qua non for the validity of the agreement. For the purposes of proof of such agreement it is mandatory that two attesting witnesses must be examined by the party to the lis as per Article 79 of the Order ibid."
Besides it is also settled law that when law has provided a particular thing to be done in a specific manner then it shall be done in that manner or it shall not be done at all. Reliance is placed on Raja Hamayun Sarfraz Khan and others vs. Noor Muhammad (2007 SCMR 307 ).
9. A cursory glance over the purported agreement to sell renders it crystal clear that mandatory/necessary terms of the agreement i.e. non-fixation of the time for performance of contract, payment of balance of sale consideration by vendee, mode of payment and delivery of possession of land by vendor to the vendee have not been fulfilled; so much so the most important feature i.e. description of the land is also missing and this Court deprecated such deficit agreement to sell in numerous reported judgments by declaring it fatal. It is clear and obvious that on account of non-incorporation of necessary ingredients, the purported agreement to sell could not be termed to have any legal existence or capable for enforcement. Reliance in this regard is placed on the case-law, referred to above, by the learned counsel for the respondent, i.e. Fateh Muhammad vs Faqir Ullah (2001 CLC 801) and Mst. Mumtaz Majeed and 4 others vs Muhammad Inayat (2016 CLC 780). In the former reported case, the relevant para is reproduced here-under for ready reference: "Apart from the fact that the land is described in this agreement quantitatively only, without there being detailed description, the agreement does not provide for the time for its completion and the payment of sale consideration by the respondent. It does not recite that any consideration passed on at the time of execution of this agreement. The learned counsel for the respondent has rightly relied on the case of Shajar Ali Hoti (supra). In the said case time for completion of sale, payment of sale consideration, mode of payment and delivery of possession were found to be missing from the agreement. It was, accordingly, held that it was not capable of being enforced. I find that even if this agreement to sell was liberally construed it did not contain the material terms within the contemplation of section 21(c) of the Specific Relief Act and was, thus, not capable of enforcement."
Likewise, in the latter pronouncement, it was held that: "According to section 21(c) of the Act, 1877, a contract, the terms of which, the court cannot find with reasonable certainty, cannot be specifically enforced. Once again, the courts below have not had their attention drawn to this aspect of the matter. It is anybody's guess as to which land forms the subject of sale agreement when no description, at all, was given in the agreement to sell Ex.P.1. Merely stating the name of the village in which the land is situated does not satisfy the requirements regarding certainty and exactitude of the description of property which was sought to be alienated. This would bring the case within the mischief of section 21(c) of the Act, 1877.The observations made in Fida Hussain v. Jalal Khan (2002 CLC 1339) shed some light on the proposition in hand and are to the following effect: "It is difficult to lay down any general rule as to what is sufficient certainty in a contract but it can be safely stated that the certainty required must be responsible one being regard to subject matter of the contract. The principle is that description must be such as to enable the court to determine with certainty the subject matter of the contract. In the instant case in the absence of any particular of Killa number or any other definable particulars, it was not possible for the court to determine that what 8 Kanals of land out of 86 Kanals 8 Marlas was subject matter of the agreement to sell. I therefore, uphold the finding of the first appellate court on this score."
10. For what has been discussed above, I do not find any merit in this second appeal, hence dismissed . No order as to costs.