1. ' The brief facts giving rise to this revision are that petitioner and respondents were allotted property in question after Partition. Respondent No,1 was allotted 1st floor whereas the petitioner was allotted second floor. Respondent No,1 allegedly sold his share of property to the petitioner firstly through the oral Agreement. Subsequently written Agreement to Sell was executed on 9-4- 1992. The respondents refused to honor the Agreement to sell and petitioner was constrained by the circumstances to file suit for specific performance before the Civil Judge 1st Class, Faisalabad on 17-4-1992. Respondent No,1 filed written statement, controverted the allegations leveled in the plaint. Out of the pleadings of the parties, the following issues were framed:-- "ISSUES.
(1) Whether the suit is not maintainable in its present form?
(2) Whether the plaintiff is entitled to a decree of specific performance of contract, dated 9-4-1992 as prayed for?
(3) Relief.
2. ' The learned trial Court decreed the suit vide judgment and decree, dated 17-1-1996. The respondent No,1 being aggrieved filed appeal before the learned A.D.J., Faisalabad, who accepted the same vide judgment and decree, dated 15-12-1999; hence the present appeal.
4. Petitioner's counsel submits that judgment of both the Courts below are at variance and the 1st Appellate Court did not advert to the reasoning of trial Court; that respondent No,1 did not enter appearance in witness-box, therefore, learned 1st Appellate Court was erred in law and reversed the findings of trial Court; that appellant proved the Agreement to Sell by producing two attesting witnesses namely Liaqat Ali P.W.4 who was sent or of Agreement to Sell and submitted an application before the trial Court for summoning of Umar Hayat attesting witness which was accepted; the summons were issued but he did not enter appearance and refused to appear. The trial Court did not adopt any coercive measure for production of Umar Hayat for recording his evidence; that respondents produced Qamar Hussain D.W.1 who was also attesting witness of Agreement to Sell, who accepted the execution of Agreement to Sell that he signed the document under coercion by the petitioner; that respondent No,1 did not sign the grounds of appeal and did not sign the amended written statement, therefore, learned 1st Appellate Court was erred in law to reverse the findings of trial Court; that scriber is also witness as per law laid down in Nazir Ahmed's case (1993 CLC 257).
5. Respondents' counsel controverted the contention of learned counsel for the appellant and submits that judgment of 1st Appellate Court is valid and the 1st Appellate Court rightly reversed the findings of trial Court after proper appreciation of evidence. This Court has no jurisdiction to disturb the findings of trial Court while exercising powers under section 115, C.P.C.; that judgment of 1st Appellate Court is in accordance with law laid down by the superior Courts. He relied upon the following judgments: ' Sana Ullah and another's case (PLD 1996 SC 256).
3. ' Abdul Khaliq's case (PLD 1996 Lah.367).
4. ' On the basis of the aforesaid judgment, respondents' counsel submits that petitioner failed to prove the Agreement to Sell in accordance with requirements of Article 17 read with Article 79 of Qanun-e-Shahadat Order, 1984; that subscriber has not signed the document, as witness, therefore, he has not been considered as attesting witness; that judgment cited by petitioner's counsel is distinguished on facts and law as in the cited case the subscriber has also signed the document whereas in the present case P. W.4 has not signed the document; that appellant did not allege a single work before the 1st Appellate Court qua the application filed by the appellant before the trial Court for summoning of Umar Hayat attesting witness meaning thereby he did not press the same before the 1st Appellate Court. If the application is accepted, Umar Hayat entered appearance even then the requirement of Articles 17 and 79 of Qanun-e-Shahadat are not fulfilled as the petitioner has only requested the trial Court to summon Umar Hayat attesting witness; that contention of petitioner's counsel that respondent No,1 has not signed the grounds of appeal and written statement are not fatal against the respondent No,1 as respondent No,2 is her real husband who entered in the witness-box and supported the case of respondent No, 1.
6. I have considered the arguments of the learned counsel for the parties and have perused the record myself. The sole question in this revision petition is that whether the agreement to sell, dated 9-4 1992 was proved on record in accordance with law or not. To resolve this controversy between the parties it is better and appropriate to reproduce the operative part of the agreement to sell which is to the following effect: ' The aforesaid Agreement to Sell was attested by the following witnesses namely Muhammad Ashiq, Haji Umer Hayat and Qamar Hussain. It is pertinent to mention here that petitioner-plaintiff did not produce any of the aforesaid witnesses. Respondent/ defendant produced Qamar Hussain D .W.1 and petitioner-plaintiff only produced Liaqat Ali P.W.4 who was scriber of the aforesaid agreement. Mere reading of the aforesaid operative part of the Agreement to Sell shows that respondent No,1/defendant No,1 has already received Rs,20,000 and also received Rs,50,000 at the time of execution of the agreement to sell on 9-4-1992 and petitioner would have given remaining amount Rs,30,000 to the respondent No,1/defendant No,1 till 18-4-1992. Agreement to Sell involves financial or future obligation and Article 17(2)(a) of the Qanun-e-Shahadat Order, 1984 is attracted or not. It is better and appropriate to produce the provision of said article to resolve the controversy between the parties which is as under:--- "(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"
5. ' It is pertinent to mention here that the provisions contained in Article 17(2)(a) of the Qanun-e- Shahadat Order, 1984 reproduced above are based on Verse 282 of Surah-AlBaqrah. It is also pertinent to mention here that the Division Bench of this Court in Muhammad Yaqoob's case (PLD 1995 Lahore 395) considered Article 17 of the Qanun-e-Shahadat and laid down the following principle: "The document creating financial liability as per Article 17 of the Qanun-e-Shahadat Order has to be attested by two witnesses."
6. ' Similar view has also been taken by the Humble Division Bench of this Court in Abdul Khaliq's case (PLD 1996 Lahore 37) and the relevant observation is as follows: "It is clear from the above that the instrument pertaining financial or future obligation, if reduced to writing, the same shall be attested by two men, or one man and two women. While Article 79 deals with the proof of execution of document required to be attested.
7. ' Article 79 reveals that the document required to be attested shall not be used in evidence until two attesting witnesses at least have been called for the purpose. This subject is to the following conditions:---
(a) The attesting witnesses are alive.
(b) They are subject to the process of Court.
(c) They are capable of giving evidence.
8. ' In the present case agreement reveals financial liabilities as is evident from the operative part of the agreement. The aforesaid proposition of law is also supported by the law laid down by the Hon'ble Supreme Court in the following judgments: ' PLD 1996 SC 256 (Sara Ullah's case).
9. ' 1997 SCM R 1210 (Saif Ullah Khan's case).
10. ' Now the other question is whether the writer of a document can be treated as attesting witness or not. This question was considered in the case of (Burdett v. Pillsbury (1842) 10 CI & F 340 and Wright v. Wakeford (1912) 4 Taunt) wherein the following principle has been laid down: "An attesting witness is one who not only sees a document being executed but also signs it as a witness."
11. ' The Privy Council has also considered definition of attesting witness in Shaw Patter v. Abdul Kadir Rowtham 16 IC 250 (O.C.) and adopted the aforesaid definition of attesting witness. The aforesaid proposition was also considered by the Oudh High Court in Ram Samujh Singh v. Mainath Quer (AIR 1925 Oudh 737) and the relevant observation is as follows: "It is not enough that a witness should see the actual execution, he wst further sign the document as a witness."
12. In view of these circumstances, the writer of a document is as good witness as somebody else if he has signed the document as a witness. In other words, there is no legal inherent incompetency in the writer of a document to be an attesting witness to it. I am supported by the following case-law: ' AIR 1950 Calcutta 401 (Nirode Mohan Roy's case).
13. ' AIR 1933 Sindh 257 (Muhammad Yaqub's case).
14. ' Similarly the Bombay High Court and Oudh High Court has considered the proposition of law that if the writer/scriber has attested the thumb-mark of an illiterate executant, then he should take to have acted as an attesting witness as per principle laid down in Raja Rath's case (AIR 1926 Oudh 209) and Yakub Khan Daimkhan Serguro's case (AIR 1928 Bombay 267). In view of the aforesaid circumstances P.W.4 Liaqat scriber/writer is not an attesting witness in terms of Article 79 of Qanun-e-Shahadat Order, 1984. The contention of the learned counsel for the petitioner that petitioner submitted an application before the trial Court for summoning Umer Hayat one of the attesting witness of agreement to sell which was accepted. Haji Umer Hayat refused to enter appearance into the witness-box but the teamed trial Court failed to adopt coercive measures for the production of Umer Hayat in witness-box has also no force as if the trial Court adopted the coercive measures for the production of Umar Hayat attesting witness even then the requirement of Article 17 and Article 79 of Qanun-e-Shahadat Order, 1984 are not fulfilled as the petitioner failed to request the trial Court for production of other attesting witness Muhammad Ashiq.
15. Respondent/defendant No,1 produced only Qamar Hussain D.W.1. No doubt he accepted the execution of agreement to sell but he further explained in his statement that petitioner has got his sign on the agreement to sell by force. Similarly the other contention of the learned counsel for the petitioner that appeal was not signed by the respondent No,1 has no force as per principle laid down by this Court in Adam Jee Construction Companies Ltd.'s case (1999 M LD 2202). It is also settled proposition of law that petitioner/plaintiff has to prove his case independently and cannot get the benefit of shortcoming of the respondent-defendant. It is also settled proposition of law that findings recorded by the Court of competent jurisdiction cannot be interfered with by the High Court, in exercise of its provisional jurisdiction under section 115, C.P.C., unless such findings suffer from jurisdictional defect, illegality or material irregularity as the principle laid down by the Privy Council in the following judgment: ' PLD 1949 PC 26 (Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras). Learned counsel for the petitioner failed to point out any piece of evidence which was misread by the First Appellate Court or violated any principle laid down by the superior Courts.
16. Therefore, revision petition has no merits and the same is dismissed.
17. Revision .