MALIK MUHAMMAD AWAIS KHALID, J:- This Civil Revision filed under Section 115 CPC calls in question the judgment and decree dated 2.7.2024 passed by the learned appellate court whereby the appeal filed by the petitioner against the judgment and decree dated 28.3.2023 passed by learned trial court decreeing respondent's suit, has been dismissed.
2. In short, the facts of the case are that Nisar Ahmad/respondent/plaintiff instituted a suit against Muhammad Anjum Sharif/ petitioner/defendant alleging therein that he (respondent) was working as Senior Superintendent in Board of Intermediate & Secondary Education, Multan whereas the petitioner was also serving in the said department as Record Lifter. Both had friendly relationships with each other. The respondent borrowed the amount from the petitioner for his personal need in the year 2017 and he returned same to the petitioner along with interest before time, thus thereby the relationships of trust between them were further strengthened. On 1.10.2019, the petitioner demanded an amount of Rs.22,00,000/- with the promise that he would return the same in December, 2019. The respondent lent him Rs.20,37,000/- instead of Rs.22,00,000/- to petitioner through two cheques bearing No.00000002 and No.00000003 dated 3.10.2019 relating to account No.1204-79019010-03, which the petitioner encashed on the same day. Later on, the petitioner did not return the borrowed amount as per promise and instead he executed an agreement to the effect that he would return the amount in the month of March 2020. After expiry of March, 2020, the respondent demanded the amount but the petitioner lingered on the matter on one pretext or the other but lastly he flatly refused. Hence, the respondent constrained to file the suit against the petitioner. The petitioner filed his written statement by denying the assertions made by the respondent in the plaint by taking a plea that Rs.12,00,000/- are due against the respondent and in order to usurp the same, the respondent filed the suit against him for recovery of Rs.20,37,000/-.
3. Out of divergent pleadings of the parties, the following issues were framed by the learned trial court:- ISSUES:
1. Whether the plaintiff is entitled to decree for recovery of Rs.20,37,000/- from the defendants? OPP
2. Whether the plaintiff has stopped by his words and conduct to file the instant suit? OPD
3. Whether the plaintiff has not come to the court with clean hands? OPD
4. Whether the impugned Iqrarnama dated 15.1.2020 is false, frivolous and liable to be cancelled?
OPD
5. Whether the suit of the plaintiff is liable to be rejected U/O VII Rule 11 CPC? OPD
6. Relief.
4. After framing of issues, the learned trial court directed the parties to produce their oral as well as documentary evidence. The respondent being plaintiff himself appeared as PW-1 and produced the attesting witnesses namely Syed Baqar Hussain as PW-2 and Rana Shan Ali as PW-3. The respondent also produced original agreement Exh.P.1 and Bank Account Statement as Exh.P.2 in his documentary evidence. On the other hand, the petitioner being defendant himself appeared as DW-1 whereas he produced one Muhammad Afzal as DW-2. In documentary evidence, he adduced copy of agreement as Mark-A and Bank Statement as Mark-B. The learned trial court after hearing the arguments of learned counsel for the parties and perusing the record, decreed the suit of the respondent as prayed for, vide impugned judgment and decree dated 28.3.2023. Being aggrieved of the said judgment and decree, the petitioner preferred an appeal which was dismissed by the learned appellate court, vide impugned judgment and decree dated 2.7.2024, hence this civil revision.
5. Learned counsel for the petitioner submits that impugned judgments and decrees suffer from illegality and are unsustainable in the eye of law. Further submits that the impugned judgments and decrees are the outcome of misreading and non-reading of the evidence and lower courts below have committed blatant illegality.
Further argued that both courts below have failed to appreciate the evidence and this Court in exercise of revisional jurisdiction has ample power for reappraisal of evidence and set aside erroneous decision passed by the learned courts below.
6. On the other hand, learned counsel for the respondent while supporting the impugned judgments and decrees has prayed for dismissal of instant civil revision.
7. Arguments heard and record perused.
8. The stance of the respondent being plaintiff is that the petitioner asked him to lend him Rs.22,00,000/- but instead he could arrange Rs.20,37,000/- which were handed over to the petitioner as loan through cheques but he later on refused to pay back the aforesaid amount and he was constrained to file the present suit. Whereas, on the other hand, the version of the petitioner is that the respondent was bound to pay the outstanding amount which was due against him. In order to prove their respective stances, the respondent/plaintiff during evidence also got exhibited the original agreement dated 15.1.2020 (where the petitioner promised to return the said amount) as Exh.P-1 and his Bank Account Statement as Exh.P-2, while the petitioner adduced the copy of some other agreement dated 1.10.2019 as Mark-A and Bank Account Statement as Mark-B. In order to prove valid execution of agreement (Exh.P-1) the respondent produced its two marginal witnesses namely Syed Baqar Hussain (PW-2) and Rana Shan Ali (PW-3) who categorically admitted its execution. Both the witnesses though were cross-examined but from the perusal of evidence produced in this regard, no material was brought on record in favour of the petitioner.
Whereas, the other document produced by the respondent in his favour was his Bank Account Statement (Exh.P2), the perusal whereof depicts that Rs.16,00,000/- was withdrawn by the petitioner through cheque No.00000002 on 3.10.2019 and further amount of Rs.4,37,000/- was withdrawn through cheque No.00000003 of the same date. Even otherwise, during the course of cross-examination, the petitioner while appearing as DW-1 admitted receiving of amount of Rs.20,37,000/-through cheques. As far as the stance of the petitioner that the respondent had to pay him the outstanding amount is concerned, it is suffice to say in this regard that none of the convincing evidence has been produced by the petitioner in his favour, so it seems to be a counterblast claim in order to pull down the case of the respondent. Another stance was also taken by the petitioner by adducing copy of agreement dated 1.10.2019 as Mark-A which apparently was made in between the respondent and one Shahid Mehmood. This fact is also admitted by the petitioner during the course of cross-examination. Petitioner/ defendant himself appeared as DW- 1, while he produced one other witness in support of his version. The petitioner submitted that actually he has lent Rs.21,37,000/- to Shahid Mehmood son of Chaudhry Mubarak Ali and the respondent was surety in that transaction. Further, the father of Shahid Mehmood issued two cheques one of Rs.6,00,000/- and second of Rs.15,37,000/- and said cheques were deposited in the account of respondent and on 3.10.2019 respondent issued one cheque of Rs.16,00,000/- and second cheque of Rs.4,37,000/-, thus the respondent paid Rs.20,37,000/- through two cheques, whereas Rs.1,00,000/- kept with the respondent and Rs.11,00,000/- were already due against him so the respondent is bound to pay Rs.12,00,000/- in toto. But neither the petitioner produced Shahid Mehmood or his father namely Ch. Mubarak Ali in witness box nor he moved the learned trial court to summon said persons as witnesses because they were very material witnesses, as per stance of the petitioner and they could verify his version after appearing into witness box. No plausible justification is available on file as to why said persons were never got summoned by the petitioner, hence he withheld his best evidence and adverse inference would be drawn against the petitioner under Article 129(g) of Qanun-e-Shahadat Order, 1984 ('The QSO').
"129. Court may presume existence of certain facts: The Court may presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations: The Court may presume:--
(a) ................................................... ;
(b) ...................................................;
(c) .................................................. ;
(d) .................................................. ;
(e) .................................................;
(f) ;
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;
(h) .......................................................;
(i) .......................................................; Whereas, the respondent/plaintiff has proved the execution of main agreement (Exh.P-1) while producing both marginal witnesses by complying with the provisions of Articles 17 & 79 of 'The QSO', which read as follows:- "17. Competence and number of witnesses:
(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 Qur'an 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." ...
"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 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."
By interpreting Articles 17 & 79 of 'The QSO', the following observations have been made in the judgment reported as Khudadad vs. Syed Ghazanfar Ali Shah alias S.Inaam Hussain and others (2022 SCMR 933):- "Article 79 of the Qanun-e-Shahadat Order 1984, (Section 68 of the Evidence Act, 1872) is germane to the proof of execution of document required by law to be attested which cannot be used as evidence until "two attesting witnesses" at least are 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. In fact this Article is reproduction of Section 68 of the Evidence Act, 1872 with the difference that, under it only one attesting witnesses was required to prove the document rather than two."
The provision of this Article is mandatory and non-compliance will render the document inadmissible in evidence. If execution of a document is specifically denied, the best course is to call the attesting witnesses to prove the execution.
9. Therefore, an adverse presumption is attached under Article 129 of 'The QSO' when a person withholds the best evidence. In this regard, guidance can be taken from the case reported as Jehangir vs. Mst. Shams Sultana and others (2022 SCMR 309), the relevant portion is re-produced below:- "When the best evidence is intentionally withheld an adverse presumption ensues that if it was produced it would be against the person withholding it as per Article 129(g) of the Qanun-e- Shahadat, 1984."
Such, presumption under Article 129 of 'The QSO' can be drawn by reason of withholding of best evidence. Whereas, the instrument shall be invalid in case it is not attested by the required number of witnesses and its enforceability under the law shall have no effect if it is not admitted by the executant, as prescribed in Article 17(2)(a) of 'The QSO'. Reliance is placed on the case reported as Hafiz Tasaddaq Hussain vs. Muhammad Din through legal heirs and others (PLD 2011 SC 241), the relevant portion of which is re-produced hereunder:- "However, the provisions of Article 17(2)(a) encompasses in its scope two fold objects (i) regarding the validity of the instruments, meaning thereby, that if it is not attested by the required number of witnesses the instrument shall be invalid and therefore if not admitted by the executant or otherwise contested by him, it shall not be enforceable in law (ii) it is relatable to the proof of such instruments in terms of mandatory spirit of Article 79 of The Order, 1984 when it is read with the later. Because the said Article in very clear terms prescribes "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".
It is evident that the respondent/plaintiff established his stance affirmatively while producing marginal witnesses.
10. Indeed, the respondent has successfully proved the execution of agreement Exh.P-1 under Articles 17 & 79 of 'The QSO' while producing the attesting witness PW-2 & PW-3 who confirmed the fact that he paid an amount of Rs.20,37,000/- to the petitioner through cheques. Further Bank Account Statement/Exh.P-2 refers the same. The contention of the petitioner that the said amount was actually paid by one Ch. Mubarak Ali, who deposited on behalf of his son Shahid Mahmood in the account of respondent/plaintiff has not been established, as said person never appeared in the witness box. As per Article 117 of 'The QSO', when a person is bound to prove the existence of any fact, the burden of proof lies on that person. The said Article is based on the rule of incumbit probatio qui dicit, non qui negat, which means that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it. Burden of proving a fact always lies upon the person who asserts and until such burden is discharged, the other party is not required to be called upon to prove his case. Further, under Article 119 of 'The QSO', the party would be bound to prove positively specific plea or fact by producing convincing and cogent evidence, whereafter opposite party could be required to disprove the same. In this regard, reliance is placed on the judgments reported as Mst. Naziran and others vs. Ali Bukhsh and others (2024 SCMR 1271), Mazhar Saeed and another vs. A.D.J. and 11 others (2011 YLR 3089).
11. There are concurrent findings of learned courts below, normally this Court does not interfere in the concurrent findings unless those are perverse, arbitrary, fanciful or capricious. Such findings are not interfered with unless the courts below have misread the evidence on record or may have ignored a material piece of evidence through perverse appreciation of evidence. Learned counsel for the petitioner has not been able to convince this Court that the concurrent findings by the courts below suffer from any legal infirmity requiring interference by this Court. No other substantial question of law has been raised by the learned counsel for the petitioner requiring intervention by this Court. Reliance is placed on Allah Bakhsh deceased through L.Rs and others vs. Muhammad Riaz and others (PLD 2025 SC 63); Muhammad Shamim Ali vs. Mst. Asma Begum and others (2024 SCMR 1642) and Muhammad Aslam (deceased) through LRs and another vs. Maulvi Muhammad Ishaq (deceased) through LRs and others (2024 SCMR 1390). Impugned judgments and decrees passed by the courts below are based on proper appraisal of evidence by attending all the material points and also did not suffer from wrongful or excessive exercise of jurisdiction, thus do not require to be meddled by this Court in exercise of its revisional jurisdiction, as the same have been passed after thorough scrutiny and appraisal of evidence. The issue in hand being fully thrashed out by both the courts below after examining the evidence of both sides. There is no misreading, non-reading of evidence has been spotted by the petitioner or flagrant violation of any statutory law has been committed by the courts below.
12. In the view of foregoing discussion, this Court is of the considered view that the concurrent findings of the Courts below do not warrant any interference in exercise of revisional jurisdiction, hence the instant civil revision being devoid of merit is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.