ANWAAR HUSSAIN, J.---This Regular Second Appeal relates to property bearing No.422-C, Gulgasht Colony, Multan, measuring 09 Marlas 51 sq.ft., comprising of 08-shops, along with residential portion (hereinafter referred as "suit property"), in respect of which suit for specific performance instituted by the respondent against predecessor-in-interest of the appellants was dismissed by the learned trial court. However, the appeal of the respondent was accepted by the appellate court below and the suit was decreed.
2. Briefly stated facts of the case are that predecessor-in-interest of the appellants, namely, Syed Abdur Rashid was owner of the suit property against whom the respondent instituted a suit for specific performance of agreement to sell dated 02.02.1994 (Exh.P3) (hereinafter referred to as "the Agreement") with the averments that the suit property was sold for a total sale price of Rs.840,000/- claiming that an amount of Rs.300,000/- was paid in cash, as earnest money, at the time of execution of the Agreement followed by payment of an amount of Rs.290,000/- and Rs.150,000/- through two cheques (Exh.P1 and Exh.P2 respectively) hence, total payment made was to the tune of Rs.740,000/-, leaving a liability of only Rs.100,000/- out of the total amount of consideration as unpaid, at the time of institution of the suit on 26.02.1999. Deceased Syed Abdur Rashid tiled written statement controverting the allegations, inter alia, on the grounds that he was sick and old person and was also issueless; that the respondent was one of the tenants in shops bearing Nos.5 and 6, which form part of the suit property since long and by taking advantage of the fact that he was issueless, the respondent with the passage of time developed cordial and confidence-inspiring relationship with him like a real son by playing with his emotions and also gained trust by performing routine work like payment of utility bills, attending government offices on his behalf and in the garb of such confidence developed, the respondent maneuvered the things to prepare the Agreement qua sale of the suit property, which is fake, frivolous and without consideration.
3. Out of the divergent pleadings, issues were framed, evidence was adduced and recorded whereafter the learned trial court, vide its judgment and decree dated 29.03.2006, dismissed the suit of the respondent; however, held that the respondent is entitled to receive those amounts of money which were paid to predecessor-in-interest of the appellants through cheques (Exh.P1 and Exh.P2) because payment of the same was proved though not in pursuance of the Agreement. On appeal preferred by the respondent, the judgment and decree passed by the learned trial court was reversed by the appellate court below by accepting the appeal and the suit of the respondent was decreed, vide impugned judgment and decree dated 20.02.2008, inter alma, on the ground that the PWs have clearly established the execution of the Agreement as well as payment of consideration; that predecessor-in-interest of the appellants, being defendant has failed to produce any evidence to establish his ill health at the time of execution of the Agreement or that any undue influence has been exercised upon him, in addition to the fact that he was confused as to which of the two legal counsel was representing him before the trial court as well as denied taking of his thumb impressions for comparison thereof with those affixed on the Agreement although such exercise did take place during the trial, which shows that evidence led by the deceased Abdur Rasheed was deficient.
4. Learned counsel for the appellants submits that the learned appellate court below has erred in appreciating the evidence on record and applying correct law inasmuch as the said court has not considered the old age of predecessor-in-interest of the appellants, who was admittedly 76-years old at the time when the Agreement was purportedly executed and the undue advantage, which the respondent had on account of emotional attachment developed between the parties; that one of the marginal witnesses, namely, Rana Muhammad Akram is the real brother of the respondent and hence, his testimony cannot be relied upon more so when it is unclear as to whether he has signed the document as an identifier or as a marginal witness since his name and/or signatures are available in both capacities; that other marginal witness, namely, Muhammad Ismail was not. alive at the time of recording of evidence and whose son appeared as DW-2 who categorically denied the execution of the Agreement by stating that his father was unwell and not in position to attest the Agreement; 'that purported scribe of the document, namely, Wajid Raza appeared as PW-5, however, his signatures are not available on the Agreement; and that the stamp vendor in the instant case was also never produced before the learned trial court to establish as to who got the stamp paper issued. It has been further contended by learned counsel for the appellants that PW-4, namely, Malik Muhammad Nazir was not even referred in the whole purported transaction and perusal of evidence reveals that he claims that transaction was effected' through his intervention. The respondent got the Agreement prepared by committing forgery and using undue influence. Therefore, the thumb impression and/or signatures on the Agreement,' even if are those of predecessor-in-interest of the appellants, were obtained through fraud and undue influence: Adds that PW-7, Syed Tariq Jaffri, DSP In-charge Finger Print, who submitted report as Exh.P7/1 (wrongly referred as Exh.P3/1 in the judgment of the learned trial court), was even not aware of contents of the report and therefore, his statement is not reliable. Finally prays for acceptance of the present Regular Second Appeal. Places reliance on Rafique Ahmed through Legal Heirs and 10 others v. Muhamad Anwar (2003 CLC 1500); Syed Muhammad Umer Shah v. Bashir Ahmed (2004 SCMR 1859); and Mst. Saadat Sultan and others v. Muhammad Zahur Khan and others (2006 SCMR 193) to support his contentions.
5. Conversely, learned counsel for the respondent submits that it was only obligatory on part of the respondent to prove the basic ingredients of a valid agreement for its specific performance i.e., its execution, payment of consideration and delivery of possession, which the respondent has done in the instant case by producing one marginal witness and, scribe as PW-3 and PW-5, respectively.
Since PW-1 and PW-2, who are bank officials, also confirmed that the cheques in question were encashed by the deceased Syed Abdur Rasheed, hence, the factum of payment of balance consideration has also been proved. Adds that the Agreement is a bilateral contract and deceased Muhammad Ismail. was witness from the appellant side who admittedly was employee of the deceased, Syed Abdur Rasheed. Further submits that signature of brother of the respondent, namely, Rana Muhammad Akram was affixed on the Agreement as an attesting witness; however, he also acted as an identifier for both the parties, therefore, his name has also been referred as an identifier Further submits that there is no denial about the thumb impression of the deceased Syed Abdur Rasheed as the same has been clearly proved by the expert evidence and the report (Exh.
P7/1) thereof clearly corroborates the stance of the respondent that the Agreement was lawfully executed.
1 6. Arguments heard. Record perused.
7. The substantial question of law involved in the adjudication of the instant lis boils down to whether the learned appellate court below appreciated the evidence on record to hold that the respondent was entitled to the decree for specific performance of the Agreement and as a result thereof to take possession of the suit property or not?
8. In order to dig out the truth and answer to the above referred legal question, it is imperative, to examine the salient features of the transaction in dispute envisaged under the Agreement, the evidentiary resume of the case and the analysis conducted and reasons put forth by the learned courts below. For better appreciation of its salient features, the Agreement is reproduced hereunder: (Emphasis supplied)
9. It is settled principle of law that an agreement becomes a contract, enforceable at law, provided it fulfills certain basic requirements, which inter alia, includes offer, acceptance, presence of consideration and free consent of the parties. In order to succeed, the respondent was required to prove that the parties reached a consensus qua the sale of the suit property. The issuance of the stamp paper used to reduce the sale transaction into writing i.e., the Agreement should have been proved by producing its vendor and his register in which it was recorded. Similarly, the attesting witnesses of the Agreement were required to prove the execution and contents of the Agreement and the payment of the remaining amount was required to be proved by producing the witnesses in front of whom the same was paid by the respondent to predecessor-in-interest of the appellants. Moreover, the respondent was required to establish willingness on his part to pay the balance amount of consideration at the time of institution of the suit.
10. It is trite that a contract is founded upon the offer by one party and its acceptance by the other and in the instant case, the respondent in his plaint had only referred to offer made by predecessor-in-interest of the appellants to purchase the suit property without specifying the date or time when such offer was made and the parties reached a consensus. A bare perusal of the plaint as well as testimony of the respondent himself reveals that the said offer and acceptance was purportedly made on the date when the Agreement was executed. On the contrary, the testimony of PW-4 claiming to be the broker, who worked to negotiate and arrange the deal between the parties, has gone beyond the pleadings in as much as he asserted that there were 3- 4 rounds of negotiation between the parties to reach the consensus. Similarly, the Issuance of the stamp paper used for execution of the Agreement could have been proved through the statement of the stamp-vendor and production of his register. Testimony of the stamp vendor and the register 'could have established the serial number of the stamp-paper used in the transaction, date of issuance/sale of said stamp paper, purpose of sale of stamp paper and, more importantly, the name of the person to whom the stamp-paper was sold. While PW-4 stated in his cross- examination that the stamp paper was bought by predecessor-in-interest of the appellants' but in the same vein stated that the stamp paper was available at the place of the execution even before he reached there and he admitted that the stamp paper was brought by predecessor-in-interest of the appellants only because the same was with predecessor-in-interest of the appellants when PW-4 had reached the place of execution. Thus, this is an inference and assumption on the part of PW-4 as he was not even witness to the fact as to who had bought the stamp paper. Moreover, as rightly observed by the trial court that no sign and thumbmark have been affixed at the back of the Agreement, which can establish as to who purchased the same. Admittedly, stamp vendor was not produced and above mentioned analysis of evidentiary resume of the case, in the light of the dicta laid down in Rafique Ahmed supra, leads to the conclusion that the respondent could not prove that the stamp paper was bought by predecessor-in-interest of the appellants for the execution of the Agreement. Similarly, in order to prove the payment of consideration, including the earnest money, received under and in pursuance of the Agreement, the respondent produced as many as three PWs. Rana Muhammad Akram who appeared as PW-3, is real brother of the respondent and has advanced his testimony only to the extent of payment of earnest money of Rs.300,000/-, and has remained silent to the extent of remaining amount in his examination-in-chief. He admits that the deal underlying the Agreement did not take place in his presence, rather he was merely intimated F by the respondent as to the deal and was asked by the latter to come to Haleem Square for attesting the Agreement. It is pertinent to point out that he states that the amount of Rs.300,000/- given to predecessor-in-interest of the appellants contained a bank stamp but does not know as to where the respondent got/brought this amount from. On the other hand, the respondent himself appeared as PW-6 and he stated that he did not bring the amount of earnest money from the bank rather it was already with him as he normally keeps such amount with him due to nature of his business of real estate. Prima facie, only one marginal witness (PW-3), who appeared before the court, is an interested person being real brother of the respondent and has made an ambiguous statement qua the payment of earnest money, which is in contradiction with the statement of the respondent himself who appeared as PW-6. Even otherwise, the statement of PW-3 lacks credibility as an attesting witness in view of the fact that admittedly the name of said PW appears on the Agreement as an identifier as well. Here it is worth mentioning that the Agreement has been alleged to be executed in the office of the respondent at Haleem Square, even though he also had his office in the suit property as tenant. Moreover, both predecessor-in- interest of the appellants as well as the purported marginal witness namely, Ismail were in their advanced age, particularly predecessor-in-interest of the appellants who was admittedly at the age of 75 years at the time of execution of the Agreement, which indicates that it does not seem probable that both of them would travel and visit the office of the respondent in Haleem Square just to execute the Agreement, rather than his office at the suit property. A careful analysis of the evidence adduced by the respondent indicates glaring contradictions, which propels to the conclusion that the payment of earnest money has not been proved through preponderance of evidence. As regards the payment of balance amount of consideration, perusal of record reveals that the respondent produced Sajjad Zaheer, Bank Manager, Habib Bank, Chowk Kachehri, Multan as PW-1 who is official of the bank where account was maintained by the respondent. He stated in his examination-in-chief as under: While admitting that he is not in acquaintance with the parties except that the respondent is the customer and account-holder of the bank, PW- I admitted that no transaction relating to the cheque to the tune of Rs. 290,000/ (Exh-PI) took place in his presence. Similarly, PW-2, namely, Tahir Raza in his examination-in-chief stated as under: Whereas, while being cross-examined, he stated as under: Bare reading of the above quoted statements of PW-1 and PW-2, who are bankers of the respondents do not prove the fact as to whether the Exh-P 1 and Exh-P2 were got encashed by predecessor-in-interest of the appellants himself or not. It is also important to note that the alleged signatures at the back of Exh-P 1 and Exh-P2, were never got compared to ascertain whether the same were also that of predecessor-in-interest of the appellants. This coupled with the fact that no other independent and corroborative witness to the payment through cheques is available, makes the payment of the balance amount of consideration under the Agreement highly doubtful. Although the learned trial court while dismissing the suit has held the payment of amount to the tune of Rs.440,000/- made through Exh.P1 and Exh.P2 as proven, the factum as to whether the said cheques were got encashed by predecessor-in-interest himself remains unproven in the opinion of this Court. Even otherwise, said enchashment even if established, as held by the learned trial court, cannot prove that the same was pursuant to the Agreement between the parties.
11. The most interesting aspect of evidentiary. resume, in the case is the testimony of PW-4, namely, Malik Muhammad Nazeer who in his examination-in-chief stated as under: Whereas while being cross-examined he stated: (Emphasis supplied)
Perusal of the above quoted extract from the testimony of PW-4 whose evidence otherwise seems to have been deliberate insertion on part of the respondent to prove the execution of the Agreement, the underlying transaction and the payment thereof inasmuch as in his plaint, the respondent has stated as to how and when the parties reached a consensus qua the transaction that took place between them on 02.02.1994 and it finds nowhere mentioned that the deal was brokered by PW-4. The evidence of PW-4 who claims to have played the role of broker in the deal is beyond pleadings and hence, cannot be relied upon. Muhammad Tariq and others v. Mst.
Shamsa Tanveer and others (PLD 2011 SC 151) is referred in this regard. In-fact, the statement of PW-4 not only creates serious doubts about the veracity of the claim of the respondent but its perusal also indicates' that the said PW has gone ambivalent and capricious in his evidence to the extent of the cheques (Exh.P1 and Exh.P2). He stated first that cheques were not given In his presence. PW-4 further stated that he is not aware of when the cheques were given. PW-4 also deposed that in addition to earnest money, one more payment was made after two years. The testimony of PW-4 is prima facie a deliberate insertion because of the reason that he was produced as a witness in the capacity that he was the broker/intermediary who negotiated the deal between the respondent and predecessor-in-interest of the appellants. This seems to be the most unnatural witness produced as it flies in the face of logic that the respondent would involve a third person to finalize a deal between the respondent and predecessor-in-interest of the appellants I even though the respondent was tenant of predecessor-in-interest of the appellants since 1984 and as per his own admission had developed close relations with the latter. Therefore, it is unnatural that a third person/intermediary would be needed to settle a deal between two persons who know each other and have landlord-tenant relation, inter se, in addition to the fact that the respondent himself is a property, dealer. This factum alone brings out the fallacy and unnaturalness of the deal as well as the testimony of PW-4. Even otherwise, perusal of cross- examination conducted on PW-4 reveals that he admittedly gets half share in every property deal he settles in collaboration with the respondent, which makes him an interested witness and therefore, his testimony cannot be relied upon.
12. Similarly, PW-5 was produced as a witness who has been alleged to be scribe of the Agreement.
However, his name is not reflected in the Agreement as a scribe. Moreover, PW-5 admits in his cross-examination that he neither has a license as a waseeqa navees nor he recorded the Agreement anywhere in his register. He also admits that he did not know the parties and was brought by the driver of the respondent. The scribe even did not identify the parties at the time of the alleged execution of the Agreement. Furthermore, PW-7 was produced as an expert witness.
However, it is well settled law that opinion of expert is a weak type of evidence and is not conclusive rather the proof of expert's evidence is only confirmatory or explanatory. In this regard, this Court is fortified by the law laid down in Syed Muhammad Umer Shah supra as well as Mst. Saadat Sultan supra. Even otherwise, PW-7 was not aware of his job description and scope of his duties which makes his testimony weak. Yaqoob Shah v. The State (PLD 1975 Peshawar 205) is referred in this regard.
13. Although the respondent, while appearing as PW-6, stated that the stamp vendor was not alive at the time of recording of the evidence and he brought the son of the stamp vendor to the trial court but could not produce him as witness without any plausible explanation. Non-production of the stamp vendor by the respondent coupled with the abstinence or failure of the respondent to produce the register where the issuance of the stamp paper was recorded, bearing signatures of the buyer of said stamp paper reveals that one of the best piece of evidence as to who bought the stamp paper has been withheld by the respondent. Moreover, at the cost of repetition, it is observed that no effort has been made to bring those officials in the witness box by the respondent, who were working in the banks or who counter-signed the cheques when the said cheques (Exh.P1 and Exh.P2) were purportedly encashed by predecessor-in-interest of the appellants. Explanation qua the non-production of the same was also not furnished. These omissions are fatal to the case of the respondent as it is well settled principle of law that if the best piece of evidence is withheld by a party, then the case falls under the purview of illustration (g) to Article 129 of the Qanun-e-Shahadat Order, 1984 and it is to be presumed that said party had some improper motive behind it and an adverse presumption against such party is to be drawn. In this regard, this Court is fortified by the dicta laid down by the Hon'ble Supreme Court in Dilshad Begum v. Nisar Akhtar (2012 SCMR 1106).
14. On the top of all is the fact that under the Agreement, an unequivocal term has been envisaged where under. it was purportedly agreed and settled between the parties that in case predecessor- in-interest of the appellants refuses to receive the outstanding consideration amount of Rs.100,000/-, the respondent being vendee would be entitled to deposit the remaining amount in the "state exchequer" and get the decree in his favour. The manner in which this clause has been inserted raises serious doubts qua genuineness of the Agreement in as much as bare reading of the Agreement itself reveals that the same has been structured on the basis of reverse engineering. Generally, an agreement qua 531e of any property is drafted in a prospective manner with the inbuilt human limitation to see through the future, however, in the instant case, the Agreement was executed on 02.02.1994 where under earnest money of Rs.300,000/- was purportedly paid on the same day and the remaining, consideration amount stood at Rs.540,000/- to be paid at later dates. Given 'the human nature, it would be apprehended at that point of time that either of the parties might back out of its contractual obligations. It is strange that on 02.02.1994, it would be conclusively deemed that out of balance amount of Rs.540,000/- two amounts of Rs.290,000/- and Rs.150,000/- would certainly be paid by the vendor and received by the vendee (predecessor-in-interest of the appellants) on particular dates and the possibility of non-receipt thereof is only to the extent of last payment of Rs.100,000/-,.which has been envisaged with the further course of action of submitting the said amount in state exchequer. This itself shows that the Agreement has not been executed on 02.02.1994 but at later stage when certain existing facts had come into being rather had been engineered into existence. Otherwise, the default, on part of either party, qua payment of the ' entire remaining consideration 'by the respondent or its acceptance thereof by predecessor-in-interest of the appellants could have been apprehended and not only default or non-acceptance of an amount of Rs.100,000/-. It shows that payment of Rs.740,000/- was already constructed as having been made and the Agreement was written with a mindset that an amount of Rs.100,000/- was outstanding, which the respondent was willing to pay but predecessor-in-interest of appellants was not accepting. Be that it may, this was a contractual clause, which was necessary and sine qua non for the respondent to obtain decree for specific performance and did not depend on and call for any direction of the court for deposit of such amount in the court. This contractual stipulation, though dubious as discussed above, has admittedly not been complied with by the respondent and the failure and/or non- deposit of the said amount on its own motion by the respondent implies that the respondent himself did not fulfill the condition precedent for the decree of specific performance even if it is assumed that the Agreement was executed by predecessor-in-interest of the appellants with his free will on 02.02.1994. Even otherwise, it is evident that the respondent did not make any such deposit i.e., Rs.100,000/- even before the trial court and admittedly paid the same after conclusion of the appellate proceedings. This fact alone disentitles the respondent from the grant of decree of specific performance.
15. On the other hand predecessor-in-interest of the appellants entered the witness box as DW-1 on 19.01.2005 when his age was reflected as 86 years, which implies that at the time of execution of the Agreement, he was 75 years of age approximately. He denied execution of the Agreement and stated that he being an old and issueless person and the respondent being his tenant for fairly long period of time had won over his trust and confidence by stating that former is like father to the latter. Since admittedly, predecessor-in-interest of the appellants was issueless and of advanced age, it cannot be ruled out that he was swayed emotionally and had developed trust in the respondent to the extent that the respondent often used to carry out his routine works relating to property and bank for which he would obtain signatures of predecessor-in-interest of the appellants on different documents. Moreover, he expressly denied receiving of any cash amount as well as execution of the Agreement. Similarly, the encashment and receipt of cheques was also specifically denied by him during cross-examination. The trial court also made its observation, at the time of recording of evidence that DW-1 seems to be ill and weak physically though appears in his senses mentally. DW-2, who is son of the other marginal witness, namely, Muhammad Ismail, entered the witness box and stated that his father died in the year 1996 and remained ill for 12/13 years before passing away and also remained oxygenated for 3 to 4 years before his death. His testimony remained unshaken and the respondent failed to bring on record any evidence, which can prove that Muhammad Ismail who was the second marginal witness of the Agreement was healthy at the time of execution of the Agreement. The learned trial court, after analyzing the evidence, reached the conclusion that the respondent failed to prove the execution of the Agreement whereas the learned appellate court below reached a different conclusion in this regard. The learned appellate court while relying upon Nazir Ahmad v. Muhammad Rafique (1993 CLC 257) and Zafar Ullah. Khan v. Mst. Hakim Bibi and another (2000 YLR 2789) has held PW-5 i.e., purported scribe to be an attesting witness. There is no cavil to the proposition that a scribe of a document may be considered as an attesting witness under certain circumstances as held in Nazir Ahmad supra but the evidence of the scribe as an attesting witness has to be measured up and scrutinized on the same yardsticks as are applicable to an attesting witness. Admittedly, PW-5 has not signed the Agreement, therefore, he cannot be treated as an attesting witness on this score alone. In case titled Sheikh Muhammad Muneer v. Mst. Feezan (PLD 2021 Supreme Court 538) the Hon'ble Supreme Court of Pakistan held that a scribe cannot be categorized as attesting witness, if he was not shown or described as witness in the said agreement. Hence, reliance on Nazir Ahmad supra as well as Zafar Ullah Khan supra by the learned appellate court below is misconceived. Even otherwise, PW-5 is neither a registered scribe nor he has registered the Agreement in any register. This itself makes the evidence of PW-5 unreliable and devoid of credit- worthiness. In the absence of being a registered scribe and his failure to register the Agreement in the relevant register denudes PW-5 from the status of scribe. Having lost his status as of a scribe, PW-5 ipso facto does not qualify to be an attesting witness. Similarly, the learned appellate court below has been more glued to the deficiencies in the evidence of predecessor-in-interest of the appellants who was defendant before the trial court, while ignoring the settled principle of law that one has to build up his own case and make it stand on his own legs than to take refuge in the deficiencies of the adversary. In this regard, reference is made to Sudhangshu Bimal Biswas v. MD Mustafa Chowdhury (1968 SCMR 213) and Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630). The learned trial court has analyzed the evidence and dismissed the suit of the respondent by giving cogent reasons whereas the appellate court below reversed it by pointing out the deficiencies in the evidence of predecessor-in-interest of the appellants. The respondent attempted to discharge his burden as plaintiff of the suit for specific performance of the contract by examining himself as PW-6 and producing one of the marginal witnesses of the Agreement (PW-3) and the scribe of the Agreement (PW-5); however, the scanning of evidentiary resume of the case hereinabove as well as various circumstances enumerated by the learned trial court, when taken together, creates a doubt about the genuineness of the Agreement and dislodge the effect, if any, of the evidence of above referred PWs. Hence, the substantial question of law is accordingly decided in favour of the appellants.
However, it is worth mentioning that the learned trial court held that the payment under Exh.P1 and Exh.P2 has been proved, though not pursuant to the Agreement, therefore, the appellants are obligated to return the same. Since the appellant side has not challenged the said findings of the learned trial court by way of filing a separate appeal or cross objections, therefore, this Court also refrains from upsetting the same.
16. In nutshell, the appellate court below was duty bound to consider the evidence of both sides in its entirety and thereafter arrive at a finding; however, in present case, the learned appellate court has appreciated evidence with a jaundiced eye. Conversely, the learned trial court has considered the deposition of PWs in a holistic manner. Once the learned trial court exercises its discretion in one way or the other after appreciation of entire evidence and material on record, the appellate court below should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. It was incumbent upon the learned appellate court below to have firmly concluded that the Agreement had been proved without relying on the deficiencies and gaps in the testimony of DW-l. The findings recorded by the learned appellate court below are based on conjectures and surmises, and cannot, therefore, be countenanced or sustained.
17. In view of the above discussion. this Court finds merit in this appeal and the same is allowed and the judgment and decree passed by learned appellate court is set aside and that of the learned trial court is restored and the suit of the respondent is dismissed.