CH. MUHAMMAD MASOOD JAHANGIR, J. After having lost his case before the two Courts below via judgments dated 30.11.2010 and 26.05.2012 respectively, this Civil Revision was preferred about nine years ago for setting aside of said concurrent findings and making Award dated 02.11.2005 rule of the Court.
2. The condensed facts to better understand the litigation in hand were that subject land 75 Kanals and 4 marlas (described in Para 1 of this petition) vested to State and under a Scheme, initially it solely allotted to late Haq Nawaz/ respondent No.1 (survived by respondents 1-a to 1-i) and then its proprietary rights were awarded to him as well. Haq Nawaz had also two other brothers viz Shahadat Ali (father of present petitioner) and Nazar Hussain (father of proforma respondent No.3). The petitioner on 01.12.2005 preferred application under sections 14/17 of the Arbitration Act, 1940 asserting that qua area referred herein-above, some litigation inter se the parties was underway before the Civil Courts, Toba Tek Singh, that for its resolution the -parties proposed to appoint Rai Ghulam Rasool/respondent No.2 to act as Arbitrator latter's asking, the petitioner, respondent No.1 and respondent No.3 through execution of independent Arbitration References referred the dispute to respondent No.2 for its culmination in said capacity, that at four occasions, the Arbitrator heard the parties, and that after the withdrawal of the cases from the Court, the Arbitrator finally pronounced the Award dated 02.11.2005, which was required to be blessed with decree to make it rule of the Court. The proforma respondent No.3 though conceded the application, yet Haq Nawaz respondent No.1 via written reply seriously contested the lis while pleading that father of the petitioner along with his other brother (father of proforma respondent No.3) had earlier instituted the suit qua subject area, which finally was dismissed on 21.02.1994, that subsequently another suit was filed as well and when application for its rejection was tabled, the same was unconditionally withdrawn on. 07.03.2006, that when the litigation had already been culminated in favour of respondent No.1, there was no fun for the appointment of the Arbitrator. The crux of his defence was that neither he had ever agreed to appoint the Arbitrator, nor Agreement for referring alleged dispute for its resolution was executed by him, rather a forged/fictitious reference deed (Exh.A2) was planted to manoeuvre the collusive Award.
3. Having faced with serious disagreement through pleadings, the issues were materialized, evidence in pros and cons received from the respective parties and as a result of its appreciation, the learned two Courts below concurrently dismissed the application as well as appeal of the petitioner through judgments already referred in para 1 ante, thus this petition.
4. Arguments heard, record perused with the able assistance of the worthy counsel for the contesting parties.
5. The bottom line per pleadings of the parties was; whether Rai Ghulam Rasool/respondent No.2 had ever been appointed as Arbitrator by Haq Nawaz/respondent No.1 via execution of Agreement dated 30.11.2003 (Exh.A2). As this fact was positively asserted by the petitioner, therefore, under law, the basic onus probandi was upon the latter to prove that Exh.A2 was genuinely and legally executed by respondent No.1 to refer the dispute to the Arbitrator. This basic and disputed document (Exh.A2) pertaining to future liability/obligation was allegedly executed after promulgation, of Qanun-e-Shahadat Order, 1984, thus sine qua non to be constructed per spirit of Sub-Article (2) of Article 17, which for better appreciation is reproduced as under:- "(2) Unless otherwise provided in any law relating to enforcement of Hudood or any 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."
The mode of proving such document is provided in Article 79 of the Order ibid, which reads as below:- "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 proving 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."
Keeping these provisions ahead, when Exh.A2 consulted, it apprised that although names of Muhammad Nawaz as well as Falak Sher being marginal witnesses were reflected therein, but surprisingly the former alone signed it, whereas the latter never put his signatures/thumb- impressions thereupon in such capacity, thus forced to infer that Falak Sher might not be available at that point of time. As far as emphasis of Ch. Muhammad Amin Javed, ASC, worthy counsel for the petitioner while referring case law reported as Muhammad Rafiq v. Muhammad Zahur Nasir and others (PLD 1956 (W.P.) Lahore 354) and Karachi Co-operative Housing Societies Union Ltd. v. Safia Bai and 12 others (PLD 1970 Karachi 379) that there is no law requiring in formal manner of drawing up Arbitration 'Agreement is concerned, suffice it to say that no doubt per section 2 of the Arbitration Act, 1940, the 'Arbitration Agreement' is defined that there must be an agreement, that is to say, the parties must be ad idem and such document must be in written form, but there is no necessity that it should be a formal agreement, or that the terms should be contained therein.
Indeed, the object of said provision is just to gather the intention of the parties to agree in writing to submit present or future differences to arbitration. The provision ibid definitely does not deal with the construction or proof of Arbitration Agreement, rather after the enunciation of Order, 1984, the Articles reproduced hereinabove deal with said features, therefore, submission of learned counsel for the petitioner being offensive to the prevailing law is repelled. The next argument of worthy counsel for the petitioner that his client produced both of the marginal witnesses viz Muhammad Nawaz and Falak Sher (AW1 and AW3) to prove due execution of Exh.A2, therefore, requirement of Article 79 of the Order ibid was duly accomplished, is not well founded. Mere endorsing name of the witness over the document is not enough to declare that it was duly attested. The term attested is defined in section 3 the Transfer of Property Act, 1882 to the following effect:- "3. Interpretation clause."attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature of mark or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.
Therefore, for a marginal/attesting witness of the document, his signature is exigent requirement. In absence thereof, it could not be claimed that Exh.A2 was duly attested, what to talk that same could be taken as evidence,
6. The other ground to disbelieve the veracity of Exh.A2 was that it is not only routine, rather obligatory that the Stamp Vendor while issuing stamp paper makes an endorsement at its back and procures signature or thumb-impressions of the person to whom it is being released, but thumb-impression of respondent No.1 thereunder is not available. Anyhow, it was an admitted position that- respondent No.1 was an illiterate person, who only could thumb-mark a document.
The Exh.A2 itself is reflective of the said fact, because there appears thumb mark of respondent No.1 at the end of its writing. On the other hand certified copy of his Register pertaining to relevant entry (Exh.D1) regarding issuance of stamp paper (Exh.A2) tendered by the Stamp Vendor (AW5) during his cross-examination contained signatures of respondent No.1, instead of thumb impression, which was sufficient to make it doubtful. The dubiety further enriched when despite availability, the original Register of stamp vending was not brought before the Court, rather intentionally withheld compelling the Court to draw hostile inference that if produced, the same might have not supported the stance of the petitioner.
7. No doubt, the petitioner during trial proceedings made an application for e comparison of disputed thumb-impression of Haq Nawaz over Exh. 2, which was declined by the learned Civil Court vide order dated 15.06.2010 for the reason that after examination of affirmative/direct evidence, it was made at a belated stage. The assertion of learned counsel for the petitioner that such move was bona fidely initiated as Exh. A2 was an authentic document, is not on-target for the counts; firstly that the adversary ultimately also endorsed the said request, rather Khurshid Ahmad son of Haq Nawaz (RW1) in his cross-examination expressly showed his willingness for the said drill work; and secondly that the opinion of Expert is always taken as weak type of evidence, which neither can be given preference over the direct evidence nor treated as its substitute. Such like opinion simply can only be taken as explanatory or confirmatory factor to the available direct evidence.
8. The other feature, which created doubt in the stance of petitioner is that per his own pleadings, the latter's case was sub judice before the Civil Court when Arbitrator was appointed. In such situation, the best course for him was either to require the Court already seized of the said litigation for referring the dispute to respondent No.2/Arbitrator, or at least while withdrawing the suit, it could be disclosed that parties for amicable settlement through their written references had chosen Arbitrator for resolving the ongoing dispute, but no such recourse adopted. Moreover, nothing was brought on record to prove that when Exh.A2 was scribed, any Its was pending before the Civil Court, rather it was surprising to note that after about two years of the execution of Exh.A2 (scribed on 30.11.2003), the petitioner along with his other brother also instituted declaratory Suit No.1727 on 18.10.2005 qua subject area against respondent No.1 before Civil Court T.T. Singh, whereas much prior thereto, the Arbitrator had allegedly been appointed and purported proceedings were being carried out by him. Obviously, had there been arbitration proceeding in progress, then there was no need for the institution of said suit, which was again simply withdrawn on 07.03.2006, even after the pronouncement of the purported Award dated 02.11.2005, but without mentioning that matter stood already culminated outside of the Court through the intervention of Arbitrator.
9. There is yet another terrible aspect, which was duly exposed by Haq Nawaz/respondent No.1 that earlier his two brothers viz fathers of petitioner and pro forma respondent No.3 instituted declaratory suit in 1989, qua area in dispute claiming 2/3rd' share therein, but after complete trial, it was dismissed on 21.02.1994. Throughout pendency of present litigation, the said judgment was neither challenged nor expressly denied. In such situation, when the litigation before Court of law stood already culminated in favour of respondent No.1, it could not be believed by a prudent man that he would have agreed for referring the same dispute for its resolution through arbitration. Thus from whatever angle, the available material consulted, it established that neither construction nor execution of Exh.A2 was duly proved.
10. As far as emphasis of worthy counsel for the petitioner that respondent No.1 never preferred objections for the annulment of Award, therefore, Courts below were bound to make the same rule of the Court is concerned, suffice it to say that this controversy has already been resolved by the august Supreme Court through judgments reported as Messrs Awan Industries Ltd. v. The Executive Engineer Lined Channel Division (1992 SCMR 65), Muhammad Tayab v. Akbar Hussain (1995 SCMR 73) and Qutubuddin Khan v. Chief Mill Wala Dredging Co. (Pvt.) Limited (2014 SCMR 1268), wherein it has already been observed that the powers vested in the Court to make an Award rule of the Court are judicial and dot ministerial and in absence of objections to an Award does not absolve the Court of its responsibility to scrutinize it.
11. The learned Courts below took keen interest in deciding the main issue, whose unanimons impugned judgments arc neither found to be tainted with mis-reading/non-reading of available material nor suffering from some jurisdictional defect to call for interference by attracting any of the exceptions detailed under section 115 of the Code, 1908, the scope whereof is narrower and restricted only to the extent of correcting errors of law as well as facts, if are found to have been committed by the subordinate Courts in the discharge of its judicial functions, which Is not the 'case here. Resultantly, for the foregoing reasons, the instant civil revision is dismissed with cost of Rs.100,000/- (Rupees one lac only).