1. This petition is directed against judgment and decree dated 12-11-1988 passed by the learned Additional District Judge-111, Quetta whereby accepting Civil Appeal No.12 of 1988, judgment and decree of trial Court dated 30-10-1976 was set aside and suit for specific performance filed by plaintiff/respondent has been decreed.
2. Relevant facts briefly stated are that on 20-3-1973 respondent S.M. Khan instituted a suit in the Court of Civil Judge, Quetta praying for the decree of specific performance of agreement dated 3- 11-1971; requiring appellant to complete the sale in respect of house bearing Municipal No.3-6/13 Faiz Muhammad Road, Quetta for a consideration of Rs.5,000. It was alleged that a sum of Rs.2,500 were paid to petitioner as earnest money at the time of executing aforesaid agreement whereas the balance amount was payable within one year. However, further sum of Rs.500 was also paid on 7-2-1972 in presence of witnesses through receipt Ex.P/2. Petitioner contested the suit and filed written statement on 24-5-1973. Apart from denying the claim on merits it was specifically asserted that plaintiff/respondent had fraudulently forged signatures on the documents and no lawful right accrued to him for instituting proceedings against petitioner. Trial Court on the pleadings of parties frame following issues:-
(1) Whether the document dated 3-11-1971 was executed by the defendant with the plaintiff?
(2) If issue No.l is proved in affirmative whether any payment has been made by the plaintiff to the defendant, if so how much?
(3) Whether the plaintiff is entitled to a decree of specific performance if so on what terms ?
2. Parties led evidence. Plaintiff/respondent examined 4 witnesses namely (i) Haji Ghulam Nabi, Petition-Writer (ii) Rafiqul Hassan Siddiqui, (iii) Feroz Khan and (iv) Khudai Dad apart from his own statement and produced agreement dated 3--11-1972 Ex.P/1 and receipt dated 7-2-1972 Ex.P/2.
3. Whereas petitioner in rebuttal besides himself examined Mr. Zaka A. Malik, Handwriting Expert. Trial Court by means of judgment and decree dated 30-10-1976 decided issue No.l in negative and consequently directed dismissal of the suit. Plaintiff/respondent preferred Appeal No.168/1976 which was partly accepted by learned Additional District Judge, Quetta vide judgment and decree dated 28-4-1977 setting aside aforesaid decree of trial Court dismissing the suit and directed remand of case to trial Court for obtaining opinion of another handwriting expert. Petitioner then preferred regular Second Appeal No.15/1977 before the High Court which through judgment dated 8-11-1977 decreed the suit in favour of respondent. Petitioner feeling dissatisfied, preferred Civil Appeal No.215/1978 before the Supreme Court of Pakistan which was ultimately accepted by means of judgment dated 13-3-1985 and case was remanded to the Court of Additional District Judge for deciding the appeal afresh on all the issues. Operative portion is reproduced below:-- "On examining the order passed by the learned District Judge, we are in agreement with the view taken by the High Court that on its own finding, it was not a case where remand was called for because .Both the parties had whatever evidence they had to lead. None was claiming any further opportunity to lead evidence. The Court itself was in a position or could be m a position to resolve the conflicting evidence and to decide the case. It was, therefore, an appropriate to case where the first appellate Court should have itself decided the case in accordance with law.
4. We would, therefore, allow this appeal set aside the judgment of the High Court and remand the case to the first appellate Court with direction that it should decide the first appeal afresh on all the issues in accordance with law and while appraising evidence it should not consider itself bound by the observations recorded by the learned Judge in the High Court in second appeal."
5. In pursuance of aforesaid directions the matter was heard by learned Additional Sessions Judge-III Quetta and has been finally disposed of vide judgment and decree dated 12-11-1988 whereby original decree of trial Court dated 30-10-1976 was set aside and the suit for specific performance is decreed in favour of respondent. Present petition was filed on 2-1-1989 assailing last mentioned judgment and decree of appellate Court.
6. Mr. Muhammad Arshad Chaudhary, learned counsel for petitioner vehemently urged that neither agreement Ex.P/1 was duly proved nor attesting witnesses were examined by the plaintiff. Besides statement of Handwriting Expert which nullified the evidence led by respondent was completely ignored. According to him first appellate Court has misconstrued legal position and miss- appreciated the evidence. He canvassed that unchallenged statement on oath of petitioner is deemed to have been accepted. In this behalf reliance was placed on the observation in case (i)
7. PLD 1985 Journal 283 and (ii) 1985 CLC 1974. It has further submitted that trial Court had rightly compared the signature because on bare examination signatures on Ex.P/1 and Ex.P/2 are quite different from each other, and also do not tally with admitted, signatures. According to learned counsel this aspect was correctly ascertained by the trial Court. It was argued that Mr. Rafiqul Hassan Siddiqi was appointed Oath Commissioner under Section 139 C.P.C., therefore, he was not competent to attest the agreement Ex.P/1, therefore, his statement has no evidentiary value.
8. Whereas Mr. Basharatullah learned counsel for respondent strenuously contended that documents Ex.P/1 and Ex.P/2 were duly proved through primary evidence, therefore, opinion of Handwriting Expert, is not reliable as rightly ignored by first appelalte Court. Reference was made to the observation in cases (i) S. Ali Nawaz Gardezi v. Lt: Col. Muhammad Yusuf PLD 1963 SC 51 (ii)
9. Muhammad Sher and others v. Muhammad Azim and another PLD 1977 Lah. 729, (iii) Gaverdhan Dass v. Ahmadi Begum AIR 1954 Hyd.
181. He maintained that available evidence has been properly evaluated in the impugned judgment. I have considered, arguments addressed by learned counsel for parties. Keeping in view divergent finding of fact of the two Courts below, with the assistance of learned counsel for parties record of the case was minutely examined and evidence thoroughly discussed. Evidently plaintiff/respondent has sought specific performance of agreement Ex.P/1 dated 3-11-1971. To establish the claim, besides himself four witnesses have been examined. Out of them two witnesses namely (P.W. 1) Haji Ghulam Nabi Petition-Writer, and (P.W.2) Mr. Rafiqul Hassan Siddiqi, Advocate and Oath Commissioner have attempted to prove agreement Ex.P/1 dated 3-11--1971. Petition-Writer has deposed that said document was executed at the instance of parties and Allah Dad has signed it. Mr. Rafiqul Hassan Siddiqi, Advocate however stated that parties to the agreement Ex.P/1 appeared before him and both of them signed within his presence for the second time. He candidly admitted that otherwise he did not know the petitioner. Perusal of Ex.P/1 shows that though Allah Dad has signed the document twice yet there is only one signature of plaintiff/respondent on said document. Comparison of the statements of these two witnesses explicitly indicates that each of them asserts factum of signing documents by the parties within their presence. When admittedly execution of documents and its attestation by Oath Commissioner was at different places. There is apparently contradiction as regards signing of plaintiff/respondent for the second time. Thus if version of (P.W.1) Petition --writer is believed, statement of Oath Commissioner about signing of plaintiff in his presence stands falsified and same situation happens. If version of Oath Commissioner is deemed true. In the given circumstances statement of Zaka A. Malik Handwriting Expert gains considerable importance. He has exhaustively explained that signatures on Ex.P/1 are different from admitted signatures of petitioner on Ex.D/1 and as indicated at Ex.D/2. D/3 according to his opinion are not of the same person. Admittedly petitioner in his deposition, categorically repudiated his signatures on Ex.P/1 and Ex.P/2. He maintained that he neither went to petition-writer nor appeared before Oath Commissioner. According to him respondent has instituted false proceeding on account of strained relationship. Anyhow it is pertinent to note that statement of petitioner on the vital aspect has neither been cross-examined nor was he confronted with documents i.e. Ex.P/1 or Ex.P/2 for purposes of identifying his signature. Obviously all these factors lead to drawing adverse inference against plaintiff/respondent. Besides non-production of attesting marginal witness of document Ex.P/1 for proving its execution by petitioner specially when it is shrouded with afore discussed doubts is certainly wherein fatal and in the light of observation following decided cases has far reaching effects.
(i) Ghulam Hussain etc. v. Muhammad Hussain 1986 CLC 770.
(ii) Ghulam Muhammad v. Muhammad Shah 1985 MLD 101.
(iii) Muhammad Bakhsh v. Nisar Ahmad 1985 CLC 1974.
(iv) Abdullah Khan v. Govt. Of Sind 1986 MLD 1500.
10. Evaluation of all aspects create reasonable doubt in the execution of agreement by petitioner. It is well-settled that Courts can also make fair comparison of the signature for arriving at correct conclusion on the basis of available record. If, authority is needed reference may be made to the observations in case (i) Abdul Rehman v. Abdul Shakoor 1984 MLD 1140 and (ii) M/s. Muhammad Yosuf Iqbal Ahmad v. Fourth SindLabour Court, Karachi PLD 1977 Kar. 711. I feel it appropriate to also make comparison of signature on agreement Ex.P/1 Receipt Ex.P/2 and admitted signatures Ex.D/1.
11. It is the case of plaintiff/respondent that Ex.P/1 and Ex.P/2 were executed by defendant. Bare perusal' of two documents would show obvious dissimilarity in the signatures of `Allah Dad'. So much so, that even learned counsel for respondent found great difficulty to dispute element of apparent dissimilarity in said signatures. Receipt Ex.P/2 has been proved through different set of two witnesses i.e. (P.W.3) Feroz Khan and (P.W.4) Khudai Dad. Since signatures of `Allah Dad' on these two documents are obviously dis-similar, therefore, directed inference would be that one of said documents has been essentially fabricated and does not contain signatures of 1 same person.
12. Plaintiff's evidence regarding signatures of petitioner on Ex.P/1 appears to be doubtful, therefore, opinion of Handwriting Expert based on comparative study and absence of effective impeachment during cross---examination becomes more reliable and worthy of credit. Appellate Court has seriously erred in ignoring conclusion of trial Court, which dealt with these aspects. Thus considering cumulative effect of evidence on record and ratio decidendi in the above-quoted case-law. I am inclined to hold, that execution of agreement Ex.P/1 and receipt Ex.P/2 by the petitioner, has not been conclusively established. The conclusion of first Appellate Court in the peculiar circumstances of the case are essentially defective. The result is that issue No.l deserves to be decided in negative, against plaintiff/respondent. Since it has been held that Ex.P/1 and P/2 do not appear to have been executed by petitioner, therefore, necessary corrolary would be that allegation about part payments are untrue, Consequently plaintiff/respondent would not be entitled to relief. In the circumstances issues Nos.2 and 3 shall also be answered in negative and against plaintiff/respondent.
13. For the foregoing discussion, I am inclined to hold that judgment and decree dated 12-11-1988 passed by Additional District Judge-III, Quetta is bad in law and defective, same is accordingly set aside and as a result thereof judgment and decree of trial Court dated 30-10-1976 is restored, and suit filed by plaintiff/respondent directed to be dismissed. Parties are however left to bear their own costs.