SHAKEEL AHMAD, Through this appeal, the appellant has assailed the judgment and decree dated 04.02.2016, passed by the learned ADJ-II, D.I. Khan whereby suit filed by the appellant was dismissed.
2. Brief facts leading to the filing of instant appeal are that appellant as plaintif f filed a suit for recovery of Rs.1260000/-before District Judge, D.I.Khan, it was based upon a pronote dated 23.4.2012. It was alleged in the plaint that borrowed amount was given, to the respondent/defendant, on account of cordial relations between the parties, but despite repeated demands he failed to pay the same, which necessitated to file the suit under Order XXXVII, C.P.C. After service of summons, the respondent/ defendant put his appearance, submitted an application for leave to defend the suit, accordingly leave was granted, the respondent/ defendant contested the suit by filing written statement, raising therein many factual and legal objections, from the divergent pleadings of the parties, following issues were framed:- 1) Whether plaintif f has got a cause of action and locus standi?
2) Whether the plaintif f is estopped to sue by his own conduct?
3) Whether the plaintif f has come to the Court with clean hands?
4) Whether the alleged pronote is false and bogus?
5) Whether the defendant has obtained an amount of Rs.12,00,000/- from the plaintif f?
6) Whether the plaintif f is entitled to the decree as prayed for?
7) Relief?
3. Thereafter , the parties were directed to produce their evidence. The appellant produced Jan Muhammad petition writer , as PW-1, who tendered entries of pronote in his statement as Ex. PW-1/1. Muhammad Bilal was examined as PW-2 who is marginal witness of pronote Ex.PW -1/1. Appellant appeared himself as PW-3 and closed his evidence. On the other hand, respondent/ defendant appeared as DW-1, he denied execution of pronote in his statement and closed his evidence. On the conclusion of trial, the learned trial court dismissed the suit vide judgment dated 04.02.2016, hence, this appeal.
4. It was argued by the learned counse l for the appellant that the learned trial court failed to appreciate the evidence in its true perspective, which resulted in dismissal of the suit, therefore, warrants interference. He next contended that the appellant had produced scribe of the document and one marginal witness of the pronote, thus, proved the execution of pronote and prayed for setting-aside the impugned judgment and grant of decree as prayed for in the plaint.
5. As against that the learned counsel appearing on behalf of the respondent contended that the appellant had failed to produce two attesting witnesses to support the pronote and that production of only one attesting witness offends the provision of Article 17(2) read with Article 79 of the Qanun-e-Shahadat Order , 1984. He next contended that PW-1 and PW-2 admitted in cross-examination that amount in question was not paid to the respondent in their presence. He concluded his arguments by contending that the appellant has failed to prove execution of pronote, therefore, the suit was rightly dismissed by the learned trial court.
6. I have heard the arguments of the learned counsel for the parties and scanned the record with their able assistance.
7. Perusal of the record reveals that appellant has not been able to prove execution of pronote and payment of loan as the testimony of the scribe and the solitary marginal witness examined in this behalf is devoid of confidence and did not sufficiently answer the requirement of Article 17(2) read with Article 79 of the Qanun-e-Shahadat Order , 1984. In this context reliance can well be placed on the judgment reported as Abdul Khaliq v. Muhammad Asghar and 2 others (PLD 1996 Lahore 367) wherein it was held that a document/ins trument pertaining to financial and future obligations could not be used in evidence unless at least two attesting witnesses were examined for such purpose, if they were alive and were subject to process of court.
8. Now adverting to the legal proposition urged before this Court, it would be advantageous to reproduce Article 17(2) and Article 79 of the Qanun-e-Shahadat Order , 1984, which reads as under:- "17. Competence and number of witnesses.(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.
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 of 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 given 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 provisions 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. A plain reading of the articles quoted above, make it absolutely clear that if a document is signed by law to be attested, it shall not be used until two attesting witnesses have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of court and capable of giving evidence. The maker of the document, i.e., pronote, being written document is an instrument within the meaning of law. The appellant has not given any explanation, whatsoever , for not producing the second marginal witness of the pronote.
The evidence produced by the appellant was not sufficient to discharge the onus with regard to proof of execution of alleged pronote. In this behalf reliance can be placed on the case reported as Dil Murad and others v. Akbar Shah (1986 SCMR 306 )
10. The appellant, even failed to prove payment of loan to the respondent, the scribe of the pronote PW-1 and solitary marginal witness PW-2 admitted in cross-examination that the payment in question was not made to the respondent in their presence.
11. I noted that instead of producing original pronote, the appellant produced photocopy of the same without following the procedure for producing secondary evidence, which too renders the evidence produced by the appellant devoid of evidence.
12. For what has been discussed above, I find that the reasons/findings in reference to the above are duly incorporated in the impugned judgment and are based on proper appreciation of evidence, therefore, the judgment and decree of the learned trial court, calls for no interference. I find no merit in the appeal in hand, which is hereby dismissed. No order as to costs.