The decisions dated 19.01.2021 & 10.06.2022 of two Courts below whereby not only suit for possession via specific performance of agreement to sell dated 21.01.2011 (Exh.P1) instituted by the petitioners/plaintiffs was dismissed rather their appeal regretted as well, are subject of petition in hand.
2. Inessential detail apart, on 10.02.2011 the afore-noted suit was instituted by the petitioners/plaintiffs before learned Civil Court, Jaranwala asserting that they purchased subject property by making certain amount to the respondent/defendant, who in its recognition executed sale contract dated 21.01.2011 (Exh.P1), but when not acted upon, approached the Court to seek decree for its specific performance. The suit was contested by the respondent avowing that neither any bargain settled nor consideration received, rather forged-fictitious agreement to sell (Exh.P1) & receipt (Exh.P2) were maneuvered by the petitioners to usurp his valuable property. Facing with divergent pleadings of the parties, learned Trial Court settled issues enabling them to lead evidence, which in pros & cons was recorded and finally after its appreciation the petitioners/plaintiffs were non-suited by the fora below through impugned concurrent judgments cited in preceding para. Now this petition has been made to check the legality & validity thereof.
3. Arguments heard, record perused.
4. Although the petitioners asserted that transaction of sale was settled with the respondent and Exh.P1 & Exh.P2 were scribed, yet said stance was strongly controverted by the latter while raising serious allegations with regard to its genuineness as well as transaction detailed therein. In such scenario, the basic onus was upon the petitioners to prove the alleged sale and due construction of their hub documents per scheme of law. As Exh.P1 & Exh.P2 involved future obligation & financial liability, thus those were to be executed under mandate of Article 17 of the Qanun-e-Shahadat Order, 1984 and sine qua non for the beneficiary/petitioners to prove the same according to mode provided in Article 79 of the Order ibid. Although these two documents at the time of its scribe per spirit of former Article were attested by Ghazanfar Ali (PW3) and one Mian Ikram being marginal witnesses, yet surprisingly the latter despite availability was not examined, thus compulsory requirement of Article 79 was not followed. The apex Court while defining said provision in depth via decisions styled as Mst. Rasheeda Begum and others versus Muhammad Yousaf and others (2002 SCMR 1089), Hafiz Tassaduq Hussain Vs. Muhammad Din through Legal Heirs and others (PLD 2011 SC 241), Farid Bakhsh Vs. Jind Wadda and others (2015 SCMR 1044), Falak Sher Vs. Province of Punjab and others (2017 SCMR 1882) has already observed that its requirement is mandatory and without strict compliance thereof any such document (entailing future obligation or financial liability) cannot be used in evidence. For ready reference, para No.8 of Hafiz Tassaduq Hussain's case (supra) being applicable with all four corners to the case in hand is given below:- "The command of the Article 79 is vividly discernible which elucidates that in order to prove an instrument which by law is required to be attested, it has to be proved by two attesting witnesses, if they are alive and otherwise are not incapacitated and are subject to the process of the Court and capable of giving evidence. The powerful expression "shall not be used as evidence" until the requisite number of attesting witness have been examined to prove its execution is couched in the negative, which depicts the clear and unquestionable intention of the legislature, barring and placing a complete prohibition for using in evidence any such document, which is either not attested as mandated by the law and/or if the required number of attesting witnesses are not produced to prove it. As the consequence of the failure in this behalf are provided by the Article itself, therefore, it is a mandatory provision of law and should be given due effect by the Courts in letter and spirit. The provisions of this Article are most uncompromising, so long as there is an attesting witness alive capable of giving evidence and subject to the process of the Court, no document which is required by law to be attested can be used in evidence until such witness has been called, the omission to call the requisite number of attesting witnesses is fatal to the admissibility of the document. See Sheikh Karimullah v. Gudar Koeri and others (AIR 1925 Alahabad 56). The purpose and object of the attestation of a document by a certain number of witnesses and its proof through them is also meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and for this the legislature in its wisdom has established a class of documents which are specified, inter alia, in Article 17 of the Order, 1984. (See Ram Samujh Singh v. Mst. Mainathy Kuer and others (AIR 1925 Oudh 737). The resume of the above discussion leads us to an irresistible conclusion that for the validity of the instruments falling within Article 17 the attestation as required therein is absolute and imperative. And for the purpose of proof of such a document, the attesting witnesses have to be compulsorily examined as per the requirement of Article 79, otherwise, it shall not be considered and taken as proved and used in evidence. This is in line with the principle that where the law requires an act to be done in a particular manner, it has to be done in that way and not otherwise."
This aspect with some more clarity that nothing short of two attesting witnesses can even be imagined for proving sale contract, besides that testimony of scribe cannot be used to consider it as statement of marginal witness has also been substantiated by the same Court in Farid Bakhsh's case (supra) by concluding that:- "This Article in clear and unambiguous words provides that a document required to be attested shall not be used as evidence unless two attesting witnesses at least have been called for the purpose of proving its execution. The words "shall not be used as evidence" unmistakably show that such document shall be proved in such and no other manner. The words "two attesting witnesses at least" further show that calling two attesting witnesses for the purpose of proving its execution is a bare minimum. Nothing short of two attesting witnesses if alive and capable of giving evidence can even be imagined for proving its execution. Construing the requirement of the Article as being procedural rather than substantive and equating the testimony of a Scribe with that of an attesting witness would not only defeat the letter and spirit of the Article but reduce the whole exercise of re-enacting it to a farce. We, thus, have no doubt in our mind that this Article being mandatory has to be construed and complied with as such."
In recent decision cited as Khudadad Vs. Syed Ghazanfar Ali Shah alias S.Inaam Hussain and others (2022 SCMR 933), the apex Court once again reinforced its earlier verdicts by holding as under:- "The attestation and execution both have distinct characteristics. The execution of document attributes signing in presence of attesting witnesses including all requisite formalities which may be necessary to render the document valid. While the fundamental and elemental condition of valid attestation is that two or more witnesses signed the instrument and each of them has signed the instruments in presence of the executants. This stringent condition mentioned in Article 79 is uncompromising. So long as the attesting witnesses are alive, capable of giving evidence and subject to the process of Court, no document can be used in evidence without the evidence of such attesting witnesses. The provision of this Article is mandatory and noncompliance 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. When the evidence brought forward by a party to prove the execution of a document is contradictory or paradoxical to the claim lodged in the suit, or is inadmissible, such evidence would have no legal sanctity or weightage.
5. Mr. M.A. Ghaffar ul Haq, worthy counsel for the petitioners being aware that mandatory requirement was not met with, while drawing attention of this Court towards available record further argued on two counts; firstly that second marginal witness was not examined as he was closely related to the alleged vendor and if he was produced, would have deposed in his favour, thus for such risk his withholding was justified and secondly, that per desire of the respondent, his signatures over Exhs.P1 & P2 were compared with through an Expert, thus no further proof was required to establish their construction as well as veracity. The first ground of argument of worthy counsel for the petitioners has already been answered by the apex Court via Para No.12 of the Hafiz Tassaduq's case (supra), which reads as under:- "12. For the argument that as the second attesting witness of the agreement was the son of the respondent, therefore, the appellant cold not take the risk of examining him, it may be held that as ordained above the mandatory provisions of law had to be complied and fulfilled and only for the reason or the perception that such attesting witness if examined may turn hostile does not absolve the concerned party of its duty to follow the law and allow the provisions of the Order, 1984, relating to hostile witness take its own course. Before parting it may be mentioned that the judgment reported as Abdul Wali v. Muhammad Saleh (1998 SCMR 760) which find mention in the leave granting order is not relevant for the proposition in hand as it relates to a document before the enforcement of the Order, 1984 when Article 17 was not there."
Thus made it clear that for any risk, mandatory requirement of law cannot be avoided.
6. As far as second limb of argument of Mr. Ghaffar, learned counsel for the petitioners is concerned, though the disputed documents were referred to the Forensic Lab for comparison, which after some drill-work submitted positive Report, but admittedly its maker was not called for to prove the same, which per se was not admissible and rightly ignored to be taken into consideration by the fora below. See Allah Dino and 2 others Vs. Mohammad Umar and 2 others case (1974 SCMR 411). Moreover, it is always risky to base the findings of genuineness of writing or signature on Expert's opinion, because such like report cannot be taken as conclusive proof. Even otherwise, a document not part of judicial record can only be proved by examining direct affirmative evidence and any secondary or other mode cannot be taken a substitute to the former mode of proof, thus the alleged Report was of no help to the petitioners. Reliance is placed on Syed Muhammad Umer Shah Vs. Bashir Ahmed (2004 SCMR 1859). Its relevant portion for ready reference is reproduced here:- "After scanning the entire evidence on record and after going through the concurrent findings, we are of the firm view that the only opinion of a Handwriting Expert, otherwise a weak piece of evidence, should not be allowed to prevail against strong circumstances and strong evidence giving inference, altogether, to the contrary. When once the petitioner had failed to prove his case on the basis of the very evidence produced by him, he cannot be given the benefit of the only favouarble opinion by the Expert, being otherwise a weak piece of evidence."
This view was reiterated by the same Court in case Mst. Saadat Sultan and others Vs. Muhammad Zahur Khan and others (2006 SCMR 193) in the following words:- "We have carefully examined the contentions as adduced on behalf of petitioners in the light of relevant provisions of law and record of the case. We have scanned the entire evidence and perused the judgments of learned trial and Appellate Courts as well as the judgment impugned.
Let we make it clear at the outset that the opinion of Handwriting Expert is a very weak type of evidence and is not that of a conclusive nature. It is well-established by now that expert's evidence is only confirmatory or explanatory of direct or circumstantial evidence and the confirmatory evidence cannot be given preference where confidence inspiring and worthy of credence evidence is available. In this regard we are fortified by the dictum as laid down in Yaqoob Shah v. The State PLD 1976 SC 53. There is no doubt that the opinion of Handwriting Expert is relevant but it does not amount to conclusive proof as pressed time and again by the learned Advocate Supreme Court on behalf of petitioner and can be rebutted by overwhelming independent evidence. In this regard reference can be made to Abdul Majeed v. State PLD 1976 Kar. 762. It is always risky to base the findings of genuineness of writing on Expert's opinion. In this behalf we are fortified by the dictum as laid down in case of Ali Nawaz Gardezi v. Muhammad Yousuf PLD 1963 SC 51."
7. Now coming to the next point highlighted by worthy counsel for the petitioners that the vendor/respondent being DW1 during cross-examination on 13.10.2014 made admission to the following effect:- {{URDU TEXT}} thus the Courts below treating it unequivocal admission having received positive report from the Forensic Science Laboratory as under:- Conclusion(s)
After careful examination and comparison of Questioned Signatures of Sabir Hussain on item nos.02 & 03 with routine signatures of Sabir Hussain on item nos.06, 07 & 08 and with original dictated signature exemplars of Sabir Hussain on item no.04, it is concluded that Questioned Signatures on item nos.02 & 03 are done by Sabir Hussain. Hence, Sabir Hussain is the author of Questioned Signatures on item nos.02 & 03. were bound to pass the decree in favour of petitioners is not well founded. It is settled law that admission of a party in ignorance of legal rights has no legal effect, which being wrong on point of fact is also not admissible. The respondent/defendant might be under illusion or delusion that report would never come against his version, therefore had made the aforesaid statement, which even was shrouded in mystery besides that it was uncertain at the time when worded so. The said statement of respondent was based upon a result to be received in future. In terms of Article 34 of the Order,1984, an admission even if considered to be a legal right is just a relevant fact, however cannot be taken as conclusive proof against a party making it. In particular backdrop of the case, the statement made by the respondent for sending his signatures/thumb impressions to the Expert is not an admission as defined in relevant provision of the Order ibid as nowhere it was claimed that these were his thumb impressions, who since inception of litigation was claiming those to be forged & fictitious. Reliance is placed on Ahmad Khan Vs. Rasul Shah and others (PLD 1975 SC 311) & Fida Muhammad and another vs. Umar Khitab (2013 CLC 1171). The petitioners had already concluded their evidence and by mere resort to the aforesaid exercise, they could not be absolved of the mandatory requirement of law as detailed in Article 79 to prove the execution of Exh.P1, which entailed financial liability and future obligation.
8. The additional drastic aspect of the case was that respondent/defendant/vendor was resident of Tehsil Jaranwala and suit property also situated in the said territory, where the Deed Writer & Stamp Vendor were available, but surprisingly the stamp paper was purchased/scribed at Faisalabad. The record divulges that Stamp Vendor was not summoned by the petitioners, who could be the best person to belie the allegation of the respondent/defendant that the stamp paper was never purchased by him. The withholding of said independent witness was enough to draw hostile inference against the petitioners under Article 129 illustration (g) of the Order ibid. When the due construction of Exh.P1 & Exh.P2 could not be proved per mandate of Article 79, then there was no scope for the success of the petitioners.
9. Although Mr. M.A. Ghaffar ul Haq, ASC/worthy counsel for petitioners while consuming maximum time argued the case to best of his ability, yet failed to point out any material irregularity/illegality as well as jurisdictional defect in the impugned judgments or that the verdicts of two Courts below are tainted with misreading/non reading of evidence. Thus no case of interference is made out and this Civil Revision having no merit is dismissed in limine.