Ch. Muhammad Masood Jahangir , J. The facts giving rise to Civil Revision in hand are that respondents No.1 to 6 instituted suit for declaration and possession with regard to area in dispute asserting that they had never appointed Sh. Riaz Ahmad, respondent No.7 as their general attorney , rather he maneuvered forged, fictitious as well as fabricated general power of attorney (GPA) dated 24.10.1989 (Exh. D-1) and on its basis alienated the said property vide sale deed dated 20.01.1990 (Exh. P-2) to Syed Arif Hussain Shah (now deceased), predecessor of present petitioners.
The alleged attorney/respondent No.7 did not file his written statement, rather only the ultimate beneficiary/predecessor of petitioners contested the suit by submitting his written statement, pleading that Sh. Riaz Ahmad was the general attorney of the plaintif fs, who as per said authority after receiving consideration executed sale deed in his favour . Having consulted his written statement, it is observed that petitioner never asserted that prior to purchase of property , he ever made some efforts to check the authenticity of GPA from concerned quarters, which registered it or even consul ted the principals-plaintif fs. It was wondrous/prodigious that the beneficiary/petitioner did not provide the detail through his pleadings qua original transaction of sale to the effect that when or before whom and against what consideration, the suit area was purchased. Out of dissection of the divergent pleadings of the parties, the basic question arose: whether the plaintif fs/respondents No.1 to 6 had ever appointed Sh. Riaz Ahmad, as their general attorney or the latter had an honest/genuine attorney deed (Exh.D1) in his favour to deal with the suit property vested to the principal. The learned Trial Court while sensing the real/pivotal area of disputed facts emanating from plaint and written statement materialized certain issues, but the basic was issue No.6, which alone for brevity sake is reproduced below:- "6. Whether the impugned general powe r of attorney dated 24.10.1989 is the result of fraud, misrepresentation, fabrication, forgery , and the impugned sale as a consequence thereof is illegal, void ineffective inoperative against the rights of the plaintiffs? OPP ."
The Court of first instance having appreciated the evidence of the respective parties, while answering this very important issue in the negative dismissed the suit on 18.05.1995, but it could not sustain when learned Additional District Judge while allowing the appeal decreed the suit vide impugned judgment dated 01.07.2009 in favour of plaintif fs/respondents No.1 to 6. This caused injury to the petitioner/beneficiary , who preferred the petition in hand.
2. M/s. Ghulam Farid Sanotra, Qamar-ul-I slam & Anwar Hussain Janjua, Advocates , learned counsel for petitioners inaugurally argued that evidence available on record was not consulted by the learned Appellate Court below in its true perspective, rather misconstrued/ misinterpreted to reverse the exhaustive findings of the learned Trial Court on vital issues, that in rebuttal to additional evidence recorded before Appellate Court, verification reports (Exh.D6&7) duly tendered, but those were purposely disregarded to render impugned decree. It was further asserted that a valid agency was created among plaintif fs & Sh. Riaz Ahmad, which was never terminated/rescinded, therefore, the agen t in exercise of his powers-authority conferred upon him vide registered instrument legally transferred the suit property through attestation of another document/sale deed and that the transaction matured when consideration made good and possession changed hand. The learned counsel for the petitioners/beneficiary next contended that by bringing on record copies of some other attorney deed, it stood proved beyond doubt that Sh. Riaz Ahmad being reliable person of the plaintif fs had been appointed by them as their agent even during the pendency of suit, but the learned Additional District Judge committed patent illegality while omitting to take notice of those available relevant and important documents. It was further emphasized that Exh. D-1 & Exh. P-2 (the questioned attorney deed as well as sale instrument) being registered documents, the presumption of regularity and correctness was attached thereto, but for mere oral bald assertion those were unwarrantably blotted out. M/s Sanotra & Qamar further pleaded that the petitioner examined Sh. Riaz Ahmad/the alleged attorney (DW-1) who on oath affirmed his authorization, therefore onus of issue No.6 so shifted to him being beneficiary , was successfully discharged, but while not giving importance to his un-rebutted statement, the lower Appellate Court committed material irregularity . They in fag end of their arguments foregrounded that learned Additional District Judge did not render his independent findings on each and every issue, rather passed an omnibus decision, further that in view of recent judgments of the apex Court reported as 'Sikandar Hayat and another versus Sughran Bibi and 6 others' (2020 SCMR 214) & 'Sakhi Jan and others versus Shah Nawaz and another ' (2020 SCMR 832) without impleadment of Sub-Registrar , Tehsildar & Patwari, who registered the GPA, entered and attested the incorporating mutation, suit could not proceed, thus prayed for remand of the case.
3. In defence, Mr. Zia Ullah Khan Niazi, Advocate on behalf of respondents No. 1 to 6/plaintif fs asserted that GPA was a disputed document, which entailed future obligation as well as financial liability , therefore, sine qua non for the beneficiary to have examined its marginal witnesses in terms of Article 79 of Qanun-e-Shahadat Order , 1984, but neither they nor any other signatory i.e. Stamp Vendor , Deed Writer or Sub-Registrar were examined to prove its authenticity/genuineness, that origina l GPA was also not brought in picture , as such the available direct, affirmative and best evidence was deliberately withheld, therefore, hostile inferenc e was rightly drawn. It was next emphasized by Mr. Niazi that while proceeding with Regular First Appeal, the learned Appellate Court, at its own, to arrive at a just and fair conclusion summoned the original record of the disputed GPA from the office of Sub- Registrar and examined the statement of Khalid Bashir , Assistant to concerned Sub-Registrar , in additional evidence, who explicitly deposed on oath that the disputed GPA was not registered in the office of Sub-Registrar , thus undoubtedly proved that it was a fabricated, forged, fake and backhanded document, which was prepared by practicing fraud just to usurp the property of the plaintif fs. The learned counsel for the plaintif fs also asserted that fraud vitiates most solemn proceedings and cannot be protected or perpetuated for any cause. He finally while supporting the impugned judgment prayed for the dismissal of petition in hand.
4. Arguments heard and record consulted in depth.
5. The real task for the parties involved herein was to prove the genuineness or otherwise of the GPA (Exh.D1). No doubt, it was claimed to be registered one, but due construction as well as attestation thereof was strongly disputed by the alleged executants while asserti ng it to be fake and fabricated document. It is again trite rule that a document does not prove itself, rather requires to be substantiated as per scheme of prevailing law by examining himself and calling the scribe besides the witnesses before whom it was reduced into writing or by evidence of persons acquainted with the handwriting, signatures of the maker/signatories of the document, if they were not available for any reason or by referring the questioned instrument to an expert for having his opinion based upon comparison/analysis of disputed writing, signatures/thumb impressions with the admitted one. It is again well established position of law that proof of execution is not synonymous with regard to prove contents thereof, but in addition to substantiate construction of that document, the beneficiary is bound to lead primary , direct, affirmative or secondary/circumstantial internal evidence as the case may be, to establish the genuineness and its truthfulness as well. The impugned GPA was encompassing financial liability or at least future obligation, thus could only be proved as per requirement of Article 79 of the Order ibid. This view finds support from the law, already declared by the apex Court in an exhaustive manner through judgment reported as 'Maqsood Ahmad and others versus Salman Ali' (PLD 2003 SC 31 ) by declaring as under:- "Therefore, whenever a document is executed with an authority to the Agent to deal with financial matters of the property on behalf of the Princi pal and also making him responsible for future obligations either to the Principal in respect of the affairs of his property or with a third person with whom he is dealing on behalf of the former , the document squarely falls within the categories of the instruments which are required to be attested by two men or one man and two women in terms of Article 17 (2)(a) of the Order and before a Court of law contents of docu ment are required to be proved as per the methodology of Article 79 of the Order ."
The said conclusion in terms of Article 189 of the Constitution is binding upon all subordinate Courts and no other exception could be taken thereto. In this background, when available record consulted, it emerged that though Sh.
Sultan Ahmad & Muhammad Aslam purportedly signed Exh.D1 being marginal witnesses, but neither they nor the Typist, who drew it or even the alleged Identifier as well as the Sub-Registrar , who attested it were summoned/produced. In absence thereo f, Exh.D1 could not be taken as evidence, what to assume that its construction, execution or the fact qua constitution of agency recorded therein proved.
6. The additional drastic aspect of the case was that the original GPA was not brought on suit record. The contention of Mr. Sanotra, Advocate for the petitioners that after having been utilized, the GPA became useless, which might be destroyed or lost, was not well founded. Although, Sh. Riaz Ahmad, the alleged agent (DW-1) appeared on behalf of petitioners, but did not utter in line, what Mr. Sanotra explored. The moment evidence on behalf of plaintif fs recorded that they had never ever executed questioned GPA (Exh.D1), onus in negative stood discharged. In such situation, failure to produce the original GPA gave rise to the presumption that had it been exhibited, it would have gone against the version of petitioners/beneficiary . It was matter of record that initially the suit in hand was dismissed vide judgment of the learned Trial Court, which was assailed through Regular First Appeal No.320/1995 and the Hon'ble Division Bench of this Court vide order dated 27.05.2002 felt necessity for summoning of record from the office of concerned Sub-Registrar , who purportedly attested the impugned GPA. The statement of Assistant to Sub-Registrar office also recorded in additional evidence, who through his statement recorded on 23.09.2002 while having relevant record before him stated that GPA in dispute bearing registration No.6345 dated 24.10.1989 was not registered in the office of Sub-Registrar XIII, Karachi. The said Court witness withstood the test of cross-examination and was found to be credible. Thereafter the Regular First Appeal could not be culminated by this Court as it was remitted back to the learned District Court concerned due to enhancement of its pecuniary jurisdiction. Anyhow , the fact remained that statement of said CW could not be rebutted and there left nothing to conclude that it was an artificial, fabricated and fake document, which was deceitfully cooked to deprive the rightful owners.
7. The next drawback was that the plain tiffs/alleged executants were residents of Faisalabad City, whereas the subject land was located in Chiniot, therefore, the GPA could normally be executed or registered in either of these two places, but its creation at Karachi, if found to be correct, was sufficient to doubt its veracity . From wherever angle the questioned document analyzed, it was found to be engineered by practicing forgery and fraud. It is by now a settled proposition of law that fraud vitiates all solemn proceedings. In 'Muhammad Younas Khan v.
Government of N.W .F.P' (1993 SCMR 618 ) the apex Court observed as follows:- "There is no cavil with the proposition that fraud vitiates all solemn acts and any instrument, deed, or judgment, or decree obtained through fraud is a nullity in the eye of law and can be questioned at any time so much so that they can be ignored altogether by any Court of law before whom they are produced in any proceedings. Fraud is defined in section 17 of the Contract Act as the suggestion, as a fact, of that which is not true, by one who does not belie ve it to be true; that active concealm ent of a fact by one having knowledge or belief of the fact; a promise made without any intention of performing it; any other act fitted to deceive; and any such act or omission as the law specially declares to be fraudulent. It was observed by this Court in the case of Abdul Wahid v. Mst. Zamurt (PLD 1967 SC 153) that a question of fraud is never purely a question of law as it involves firstly a finding with regard to fact, that is to say conduct on the part of the party alleged to consider whether such proved conduct amounts in the circumstances of the case of fraud." and further solicited by the same Court in cases reported as 'Mst. Zulaikhan Bibi through Lrs and others versus Mst. Roshan Jan and others' (2011 SCMR 986) and 'Ghulam Farid and another versus Sher Rehman through Lrs' (2016 SCMR 862 ).
8. As regards the claim of predecessor of petitioners that he is bona fide purchaser for value, suffice it to say that Sh. Riaz Ahmad being holder of a forge d & factious attorney deed had no authority to transfer the suit area in favour of the petitioners, who merely on the basis of sale deed executed by such agent in his favour cannot be declared rightful owner because neither the fraudulent alienation can be protected nor perpetuated and was rightly collapsed by the learned Appellate Court through the impugned decree as per mandate of case law reported as 'Ghulam Rasool and others versus Noor Muhammad and others' (2017 SCMR 81 ).
9. The argument of learned counsel for the petitioners that learned Appellate Court should have returned independent findings on each & every issue might have carried some weight, if the matter entailed dimensional features, whereas in this case issue No.6 being of pivotal nature was to be decided on one or the other way and decision on rest of the issues was dependent on it. As such no exception can be taken in this behalf.
10. The emphasis of learned counsel for the petitioners that by bringing on record copies of some other power of attorney deeds it fully established that Sh. Riaz Ahmad was a person of confidence of the principal/plaintif f is not well founded. No doubt, some Photostats were brought on record, but it was not enough. It is well established by now that documents other than copies of judicial record cannot be received in evidence without having proof of its signatures and handwriting. There is no cavil that production of document and proof of transaction referred therein are two different subjects and to me the latter aspect is more important. See Khan Muhammad Yusuf Khan Khattak vs. S.M . Yousaf and 2 others (PLD 1973 SC 160) and relevant extract thereof at caption "o" & "v" is reproduced hereunder:- "When I say that the document Exh.P .E. is unproved. I have in mind the mandatory provisions of section 67 of the Evidence Act, which lay down that "if a document is alleged to be signed or written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person' s handwriting must be proved to be in his hand-writing." If the case of the respondent was that the appellant had signed the original of Exh.P .E. or the certificate appended to it, it must have been proved that it was in the appellant' s handwriting, for which no effort whatsoever was made. In the case of Bengal Friends & Co. v. Gour Benode Saha & Co., this Court had expressed itself on this point as follows:- "Documents which are not copies of judicial record, should not be received in evidence without proof of signatures and handwriting of persons alleged to have signed or written them."
I am of the view that even if such documents are brought on record and exhibited without objection, they remain on the record as "exhibits" and faithful copies of the contents of the original but they cannot be treated as evidence of the original having been signed and written by the persons who purport to have written or signed them, unless the writing or the signature of that person is proved in terms of the mandatory provisio ns of section 67 of the Evidence Act."
"As regards the contention that the document was not proved in accordance with law, I find that there is merit in the submission that the provisions of section s 67 and 47 of the Evidence Act were not complied with, as there is no evidence on the record regarding the identity of the handwriting and the signatures of the appellant as appearing on the certificate appended at the end of Exh.P .E. "
Thus mere exhibition of said attorney deeds was not sufficient to draw positive inference in favaour of the beneficiary regarding the authenticity of the document questioned herein.
11. The next argument of learned counsel for the petitioners that in rebuttal to additional evidence brought on record through statement of CW some reports were tendered, which were not given due weight is also misconceived for the counts, firstly that those were not proved as per yardstick of scheme of law, and secondly that statement of CW was a direct and affirmative evidence based on original record, which could not be rebutted by bringing on record some unproved reports.
12. The emphasis of learned counsel for the petitioners that as per dicta laid down in cases of Sikandar Hayat and Sakhi Jan (supra) that without impleadment of Tehsildar , Patwari or the Attesting Officer, who allegedly while colluding, played vital role in sanction of mutation or instrument, suit was not competent and liable to be dismissed on said score, suffice it to say that each case is to be decided on its peculiar facts. The impleadment of such official/of ficer would be essential, if ultimately it is observed that some benefit was derived by said authority . For instances, the Attesting Officer by his act alienated property of the other to his fiduciary for his own gain, whereas under order 1 rule 9 of the Code, 1908 a suit for misjoinder or non-joinder of some party cannot be defeated. In the case in hand, indeed, the attesting/regis tering authority or other officials did not contribute in constructing the subject GPA, rather it was a fake and artificial document, hence the cited judgments with due respect are not applicable with all four corners.
13. For the foregoing reasons, it is proved that ascendant of the petitioners being in league with a forger usurped property of innocent persons and had no case at all on merits. The plaintif fs must come forward to initiate criminal proceedings against the delinquents, besides filing of suit for recovery of damages, if so advised. The impugned judgment was perfectly passed as per available evidence and law on the subject and this Civil Revision being meritless is dismissed with costs of Rs.1,00,000/-.