1. ' CH. IJAZ AHMAD, J.---We intend to decide R.F.A. No, 210 of 1999 and R.F.A. No, 211, filed by Salman Ali against the judgment and decrees, dated 31-3-1999 passed by Civil Judge, Lahore by one consolidated judgment as both the appeals arise out of one impugned judgment.
2. The brief facts out of which the present appeals arise are that Mst. Umat Ullah Sadiq Ali owned land measuring 71 Kanals, 18 Marlas; she gifted the same to her son Salman Ali through registered gift dated 26-3-1986. In this respect, Mutation No,21893 was also sanctioned on 27-5-1986 by the Revenue Authorities. Salman Ali leased out the land in question to Maqbool Hussain son of Haider Ali for one year from 30th of June, 1995 to 30th of June, 1996. Salman Ali, his mother and sister sold their other land measuring 27 Kanals, 14 Marlas known as Begum Park through Muhammad Ayub to different persons. Maqsood Ahmad respondent allegedly got executed general power of attorney in his favour from Salman Ali, appellant on 17-4-1996 and registered on 13-5-1996. Maqsood Ahmad, on the basis of the aforesaid general power of attorney, sold the land in question i,e, 71 Kanals and 18 Marlas to his real brother Muhammad Ayub through registered sale-deed, dated 30- 5-1996 for a consideration of Rs,5,90,000. The appellant Salman Ali filed suit for declaration with consequential relief for cancellation of general power of attorney and sale-deed before the Senior Civil Judge, Lahore on 12-6-1996. Maqsood Ahmad and Muhammad Ayub also filed a suit for declaration with permanent injunction against Salman Ali and the S.H.O. On 3-9-1996 before the Senior Civil Judge, Lahore. The learned Senior Civil Judge, Lahore, consolidated both the suits vide order, dated 5-3-1998. The respective parties filed written statements and controverted the allegations levelled in the plaints. Out of the pleadings of the parties, following issues were framed by the trial Court:-
(1) Whether the suit filed by Salman Ali for declaration is false, frivolous, mala fide: If so, its effect?
OPD
(2) Whether the plaintiff is estopped to file his suit for declaration due to his act and conduct? OPD
(3) Whether the plaintiff has not come to the Court with clean hands? If so, its effect? OPD
(4) Whether the plaintiff Salman Ali has no cause of action against the defendants? OPD
(5) Whether the defendants are entitled for the recovery of special costs under section 35-A, C.P.C.? OPD
(6) Whether the plaintiff is owner in possession of the property in dispute and is entitled for declaration with consequential relief and cancellation of Sale Deed No, 3693, Bahi N,o. 1, Jild No, 1073, dated 30-5-1996 and Power of Attorney No, 2762 dated 13-5-1996 on the ground mentioned in the plaint? OPP
(7) Whether the suit of the defendant Maqsood Ahmad is not maintainable in its present form? OPP
(8) Whether the plaint of Maqsood Ahmad, defendant is liable' to be rejected under Order VII, Rule 11, C .P.0 .? OPP
(9) Whether the present suit of Maqsood Ahmad etc. For declaration is liable to be stayed under section 10, C.P.C.? OPP
(10) Whether the suit of Maqsood Ahmad has not been properly valued? If so, what is proper valuation? OPP
(11) Whether the defendants Maqsood Ahmad and Muhammad Ayub are entitled to get decree for declaration in respect of land measuring 71 Kanals, 18 Marlas in respect of disputed land on the ground that they have purchased the same after the payment of Rs, 36,06,000 on the basis of the sale-deed? OPD
(12) Relief.
2. ' The parties led oral as well as documentary evidence. During the pendency of the suit, Maqbool Hussain died, hence, his L.Rs, were impleaded.
3. ' The trial Court dismissed the suit of Salman Ali appellant and decreed the suit of respondents Maqsood Ahmad and Muhammad Ayub by one consolidated judgment and decree, dated 31-3- 1999, hence the present two appeals arise out of the aforesaid judgment and decrees.
3. The learned counsel for the appellant submits that Issues Nos. 6 and 11 are material issues and on the basis of which, the suit of the appellant was dismissed and the suit of the respondents was decreed. The appellant produced as many as two witnesses in support of Issues Nos. 6 and 11 namely P.W.1 Hasina Ali, P.W.2 Mst. Umat Ullah Sadiq Ali and himself appeared as P.W.3. Appellant Salman Ali produced Exh. P.1 to P.61 to show different sale-deeds registered qua land measuring 27 Kanals and 9 Marlas through the agency of Muhammad Ayub respondent and also produced Exhs.
4. P.62 to Exh. P.76, whereas, respondents produced D.W.1 Shahid Azim to prove sale of stamp paper.
5. To Muhammad Ayub for execution of general power of attorney by Salman Ali in favour of Maqsood Ahmad and to prove the contents of general power of attorney (Exh. D.2), produced Muhammad Sadiq, D.W.2 marginal witness of Exh. D.2 general power of attorney and also produced D.W.3 Liaqat Ali who supported the respondent's case but he is not a witness of the execution of Exh.
6. D.2; Maqsood Ahmad, D.W.4 holder of general power of attorney' of Salman Ali and D.W.5 Muhammad Ayub real brother of respondent Maqsood Ahmad in whose favor sale-deed has been registered and D.W.6 Muhammad Idris, Handwriting Expert. (It is pertinent to mention that the report of handwriting expert has not been believed by the trial Court as is evident from para. 23 of the impugned, judgment). The respondents also produced documents in support of their case i,e, Exh.D.1 chart showing the alleged payment of Rs, 36,06,000 made from 15-10-1992 to 3-4-1995 to the appellant by Muhammad Ayub; Exh. D.2 general power of attorney; Exh. D.3 sale-deed in favour of Muhammad Ayub; Exh. D.4 decision on bail application and Exh. D.5 report of the handwriting expert. Learned counsel for the appellant submits that all the sale-deeds qua Begum Park Exh. P.1 to Exh. P.61 were attested by Muhammad Ayub Khan except Exh. P.37, sale deed executed by Salman Ali in favour of Muhammad Ayub. P.43 sale-deed executed by Salman Ali in favour of Muhammad Jamil and Khaliq Hussain. P.62 sale-deed executed by Salman Ali in favour of Maqbool Hussain. He further submits that two agreements were executed by Salman Ali in favour of Maqbool Hussain on 15-10-1992 and 23-10-1992 respectively for sale of land measuring 27 Kanals, 9 Marlas known as Begum Park. The contents of the agreements reveal that price initially was fixed at Rs, 1,50,000 per Kanal which was subsequently reduced on the request of Maqbool Hussain from Rs,1,50,000 to Rs, 1,25,000 per Kanal. He further submits that Exh. D/1 is a document which reveals that sale price was paid by. Muhammad Ayub to the appellant as well as to the co-owners on different dates regarding Begum Park Land which had been sold through Muhammad Ayub from time to time; he submits that this document itself reveals that the word "{{URDU TEXT}}" 99 Kanals, 7 Marlas were written by different ink and different handwriting. He further submits that in case terms of the aforesaid agreements are read together with Exh. D/1, then. Amount received by the appellant is qua 27 Kanals, 9 Mamas regarding Begum Park and not the land in question measuring 71 Kanals 18 Marlas. He further submits that sale-deeds Exhs. P.16, P.35, P.36, P.48 to P.51 and Exhs. P.53 to P.61 clearly contained the word Begum Park Scheme whereas sale-deeds Exhs. P.1 to P.15, P.17 to P.34, P.37 to P.47 and P.52 though do not contain the word Begum Park Scheme but the boundary mentioned in the sale deeds relates to Begum Park Scheme qua the land measuring 27 Kanals, 9 Marlas. He further submits that Exh.P.62 reveals that garden i,e, (suit land 71 Kanals - 18 Marlas) of the appellant was in possession of Maqbool Ahmad from 30-6-1995 to 30-6-1996 on lease. Similarly lease deed was also executed by the appellant qua the garden in favour of Maqbool Ahmad for the year commencing from January, 1984 to December, 1985. He further submits that on the basis of aforesaid documents, allegedly, the general power of attorney has been fraudulently executed from Salman Ali appellant in favour of Maqsood Ahmad on 17-4-1996 registered on 13-5-1996 through local commission namely Mushtaq Ahmad Bhatti, Advocate who executed the same on 8-5-1996 at 6-00 p.m. Exh. D.2 general power of attorney was attested by Ch.Muhammad Sadiq. The respondents produced Ch. Muhammad Sadiq D.W.2 and Shahid Azeem D.W.1 to prove that general power of attorney was executed by Salman Ali in favour of Maqsood Ahmad with his free consent. On the basis of the aforesaid general power of attorney, Maqsood Ahmad sold the land in question to his real brother Muhammad Ayub vide registered sale-deed, dated 30-5-1996 which was witnessed by Abdul Majeed and Malik Muhammad Nazir who were not produced in the witness box for a consideration of Rs, 5,90,000. He further submits that execution of documents i,e, general power of attorney and sale-deed was denied by the appellant in his suit as well as in the written statement filed in the suit filed by Muhammad Ayub and also as P.W.3, thus, onus automatically shifted to the respondents to prove that the document Exh.D.2 was executed validly in accordance with law. In support of his contention, he relied upon the judgments reported as Abdul Majeed etc. v. Muhammad Suleman etc. (1999 SCMR 1245) and Sahib Bibi v. Lal (1992 CLC 807). He further submits that the respondents withheld best evidence of Mushtaq Ahmad Bhatti, Advocate, therefore, the respondents failed to prove general power of attorney which was executed in favour of Maqsood Ahmad. He further submits that D.W.5 Muhammad Ayub purchased the stamp paper without any authority and this fact was admitted by D.W.5 in his cross- examination; further submits that Exh. D.2 general power of attorney executed by Salman Ali in favour of Maqsood Ahmad reveals that the same is. Not genuine on the basis of the reasons given below:--- ' That the stamp paper was purchased by Muhammad Ayub D.W.5 who had no authority to purchase the same; ' Muhammad Ayub who is beneficiary, identified Salman Ali, alleged executant of general power of attorney, in favour of Maqsood Ahmad, D .W .4; ' Mushtaq Ahmad Bhatti, Advocate was appointed to execute the Exh. D.2 as local commission but he was not produced in the witness-box; ' that general power of attorney was attested only by one witness namely Ch. Muhammad Sadiq, the name of this witness also has been written subsequently as ink and handwriting of the main body of the general power of attorney and of this witness are different; ' that Ch. Muhammad Sadiq signed the Exh. D.2 as marginal witness and subsequently also fixed thumb-impression. This fact was also admitted by him that he only signed the document but subsequently has also fixed the thumb-impression; this fact was also admitted by him in his cross- examination; ' that second page of the impugned general power of attorney also reveals that further identification is also made by Muhammad Ayub the beneficiary and it appears that his name has also been written with different handwriting; ' that Salman Ali appellant did not file any application before Registrar/Sub-Registrar under section 33 of the Registration Act for appointment of local commission that he was not in a position to appear before him on account of unavoidable circumstances for registration of General Power of Attorney by him in favour of Maqsood Ahmad; ' that nobody has filed any application before the Registrar/Sub-Registrar for non-appearance of the executant, Salman Ali, appellant at the time of registration of the general power of attorney, therefore, same registered by Registrar/Sub-Registrar through local commission is in violation of the aforesaid provisions of Registration Act; ' that Ch. Muhammad Sadiq D.W.2 also did not belong to the area where the general power of attorney in question was executed; similarly Shahid Azeem, writer of the general power of attorney did not belong to that area; ' that no respectable of the locality came forward to attest the execution of general power of attorney, therefore, the same was executed by Maqsood Ahmad fraudulently but the trial Court did not consider this aspect of the case and did not appreciate the evidence on record in true perspective; that the respondents alleged that general power of attorney was executed by Salman Ali appellant qua the land in question against receipt of total consideration of Rs,36,06,000 as is evident from para. 2 of the written statement and para. 3 on merits as well as in para. 1 of their own plaint. The respondents filed application for amendment of the issues already framed by the trial Court under Order 14, Rule 5, C.P.C. Claiming therein that Salman Ali executed 'general power of attorney in favour of Maqsood Ahmad against the aforesaid consideration regarding the land in question. The application was dismissed by the trial Court vide order dated 27-4-1996 on the ground that the respondents have to prove consideration paid to the appellant for the suit land; ' that Ch. Muhammad Sadiq D.W.2 is an interested witness who has taken 8/10 Marla plot from Muhammad Ayub as is evident from his statement; similarly Shahid Azeem D.W.1 is also an interested witness who has attested fifty-six sale-deeds executed by Salman Ali through Muhammad Ayub. Out of the sale-deeds which are Exhs. P.1 to P.61, Shahid Azeem attested all the sale-deeds except Exhs. P.4, 35, 43, 45 to 52; that the respondents have failed to prove that general power of attorney Exh. D.2 was executed by Salman Ali appellant in favour of Maqsood Ahmad D.W.4 as the statements of Shahid Azeem and Muhammad Sadiq contradicted with each other on material points; similarly respondents failed to prove consideration passed on to the appellant as the statement of Liaqat Ali is not worth consideration and even otherwise, payment of any consideration has not at all been mentioned in the body of general power of attorney Exh. D.2.
7. Further submits that statements of the D.Ws. Particularly Maqsood Ahmad D.W.4 and. Muhammad Ayub D.W.5 are contradicting with each other on material points but the trial Court did not consider this aspect of the case at all. He further submits that it was the duty and obligation of Maqsood Ahmad to have active consultation with the principal if the agent wanted to sell the land in question on the basis of the power of attorney to Muhammad Ayub, his real brother and that too for a nominal consideration. This fact alone is sufficient to prove that the documents in question are result of fraud and misrepresentation.
8. ' In support of his contention, the learned counsel for the appellant has placed reliance upon the judgments reported as PLD 1985 SC 341 (Fida Hussain v. Pir Muhammad), 1992 SCMR 1488 (Malik Riaz v. Mian Inayat Ullah and others), 1997 SCMR 1811; (Haji Faqir Muhammad v. Pir Muhammad) PLD 1989 Lah. 440 (Wali Muhammad v. Muhammad Ibrahim) and 1994 CLC 1690 (Muhammad Siddique v. Shagufta Bano).
9. ' He further submits that documents Exh. D.2 general power of attorney creates financial liability therefore, the same must have been attested by two male witnesses and the same had be proved by producing at least two male witnesses as required by Article 17 read with Article 79 of Qanun- eShahadat Order, 1984. He further urged that the respondents did not produce evidence to prove the documents as required by the law. In the present case, Mushtaq Ahmad Bhatti was the best witness as the general power of attorney was attested by him as a local commission but he has not been produced by the respondents. He further submits that the trial Court decided the case in violation of the basic principles and shifted the onus on the appellant to disprove the document i,e, the general power of attorney in question. The appellant had denied the execution of the document, then; onus shifted automatically to respondents; they failed to discharge the liability by not producing the best evidence. He further submits that Exh. D.1 copy of the register account clearly reveals that the entire land mentioned therein was sold for a consideration of Rs, 34,31,250 and if the price of land is calculated at the rate of Rs,1,25,000 per Kanal, it proves the case of the appellant that it was the sale price of area measuring 27 Kanals and 10 Marlas and not for an area mentioned in the document i,e, measuring 99 Kanals, 7 Marlas. He further submits that if Rs, 1,75,000 which the respondent Muhammad Ayub had to give for purchase of car are added, the aforesaid amount comes to Rs, 36,06,000, therefore, the evidence produced by the appellant dislodged/destroyed the case of the defendant/respondents. He further submits that Salman Ali appellant, his mother and sister sold the land situated in Begum Park through registered sale- deeds Exhs. P.1 to P.61 without executing any general power of attorney in favour of any person. He further submits that the land situated in Begum Park was sold at the rate of Rs, 10,000 per Marla from the years 1992 to 1995, therefore, the stand taken by the respondents that the land measuring 71 Kanals, 18 Marlas adjacent to the land of Begum Park Scheme was sold by the appellant to the respondents for a consideration of Rs, 36,06,000 in the year 1996 is not believable as it would amount to selling the adjacent land in the year 1996 at the rate of about Rs,2,500 per Marla. This fact also belies the case of the respondents and this fact was not considered by the trial Court at the time of deciding the suit. He summed up his argument by stating that D.W.6 Muhammad Idris Finger Expert was not rightly believed by the trial Court as he is interested witness and has no knowledge over the subject..
4. On the other hand, the learned counsel for the respondents argued that the appellant/plaintiff received Rs, 36,06,000 vide Exh. D.1 qua the land in question: The Exh. D.1 was executed by mother of Salman partly and partly by appellant Salman and this fact was admitted by the mother of appellant while appearing as P.W.; further submits that trial Court has given finding of fact on Issues Nos. 6 and 11 against the appellant after proper appreciation of evidence while the learned counsel of the appellant has failed to point out any material piece of evidence which was misread or not read by the trial Court; further submits that the trial Court decided the case in accordance with law and the learned counsel of the appellant failed to point out any principle violated by the trial Court at the time of the deciding the cases; further submits that the alleged agreement Exh.
10. P.62 was not executed by Maqbool Hussain in favour of Salman appellant as is evident from the back of the agreement that the stamp paper was purchased by Suleman himself for executing an affidavit, therefore, the contention and stand of the appellant that late Maqbool Hussain, father of the respondents, has got executed power of attorney Exh. D.2 through fraudulent means is not borne out from the evidence on record. Further submits that Maqbool Hussain denied this fact by filing written statement in the suit and Maqbool Hussain also admitted in his written statement that he paid Rs,36,06,000 to the appellant, his mother and sister through Exh. D/1; further submits that on account of the aforesaid consideration, general power of attorney was executed by Salman in favour of Maqsood Ahmad, respondent, who sold the land in question to Muhammad Ayub.
11. Muhammad Ayub also filed suit for declaration against the appellant in which appellant Salman Ali filed written statement and has taken the plea that garden was given on lease to Maqbool Hussain on yearly basis through Exh. P.62 which was not taken by Salman Ali in his own suit, therefore, this plea is afterthought; further submits that the appellant did not allege the specific plea of fraud in his suit as well as in written statement filed by him in the suit of Muhammad Ayub and Maqsood Ahmad; further submits that appellant allegedly executed two agreements qua the land measuring 27 Kanals, 14 Marlas known a Begum Park Scheme in the year 1992 and late Maqbool Hussain had paid aforesaid amount qua the sale transaction of the aforesaid land but the appellant has failed to bring on record or exhibit agreements allegedly executed between the mother of appellant and Maqbool Hussain, dated 15-10-1992 and 23-10-1992 through primary or secondary evidence; further submits that the appellant mentioned in para. 3 of the plaint that he came to know through known person that the respondents have executed general power of attorney fraudulently but he neither mentioned the name of the said known person in the plaint nor in the oral evidence the name was disclosed nor said person was produced in evidence, from whom, the appellant came to know that aforesaid general power of attorney was executed, therefore, the appellant failed to prove non-execution of said general power of attorney and withheld the best evidence; further submits that the respondents denied the factum of execution of agreements by Maqbool Hussain, dated 15-10-1992 and 23-10-1992 in their amended written statement but the appellant failed to file any rejoinder or produce any evidence to believe the stand of respondents taken by them in their amended written statement; further submits that amended written statement was filed by respondents with the permission of the Court and that order of the trial Court attained finality as the appellant has never challenged the same before this Court; further submits that it was the duty and obligation of the appellant to prove that fraud was committed with him but he failed to discharge his onus. In support of his contentions, the learned counsel for the respondents has placed reliance upon the judgments reported as PLD 1969 SC 167 (Ahsan Ali and others v. District Judge and others) and 1993 SCMR 618 (Muhammad Younus Khan's case); further submits that P.W.1 and P.W.2 in their statements did not utter a single word about Exh.
12. D/1 that it was obtained by respondents by fraud; further submits that appellant's mother and sister owned different land from the land in question. The Exh. D/1 clearly proves the consideration received by the appellant, his mother and sister qua the land measuring 71 Kanals, 18 Marlas sold by the appellant to the respondents for the aforesaid consideration; further submits that if Exh. D/1 and general power of attorney Exh. D/2 are read together, it would clearly reveal that general power of attorney is in the nature of irrevocable general power of attorney and the appellant was left with no authority to revoke the same by virtue of section 202 of the Contract Act; further submits that the appellant/plaintiff had to prove that he received consideration qua other lands i,e, land measuring 27 Kanals 14 Marlas and not the land mentioned in Exh.D/1. Further submits that P.W.1 to P.W.3 had sold their land through Exhs. P.1 to P.61 either in their personal capacity or through power of attorney and had received the consideration directly. Further submits that in case the contention of the learned counsel of the appellant is accepted in to then the area sold by the appellant through Exhs. P.1 to P.61 comes to about 23 Kanals, 12 Marlas whereas appellant claimed that they sold 27 Kanals, 14 Marlas. This fact demolished the case of the appellant, whereas, the appellant alleged that they received the consideration and sold the land 27 Kanals, 14 Marlas at the rate of Rs,1,25,000 per Kanal and the total consideration/amount comes to Rs, 31,13,000 for registered sale-deed Exhs. P.1 to P.61 of the area measuring 23 Kanals and the appellant failed to explain that the remaining land measuring 4 Kanals was sold to other persons through any other registered sale-deed, therefore, this fact is sufficient to belie the case of the appellant; further submits that Ekh. D/2 general power of attorney executed by appellant in favour of Maqsood Ahmad was duly proved by producing D.W.1 Shahid Azim scribe and D.W.2 Ch. Muhammad Sadiq, one of the marginal witnesses; the respondents proved Exh. D/2 in accordance with law and provisions of Qanun-e-Shahadat Order, 1984; further submits that general power of attorney does not involve any financial transaction, therefore, requirements of Article 17 read with Article 79 of the Qanun-e-Shahahat Order, 1984 are not attracted; further submits that Mr. Mushtaq Ahmad Bhatti, Advocate has attested the general power of attorney under the authority of Sub-Registrar, therefore, non-production of Mr. Mushtaq Ahmad Bhatti, Advocate is not fatal to the case of the respondents. In this respect, reliance is placed upon the judgment reported as Muhammad Lal etc. v. Ghaus Muhammad etc. 1991 CLC Note 74 at p. 59; further submits that the trial Court was not justified to reject the report of the handwriting expert and discard the evidence of D.W.6 Muhammad Idris further submits that the report of the handwriting expert is reliable independent evidence of the expert and even if the thumb-impressions and signatures of appellant on Exh. D.2 and other documents are compared by the Court itself, they are genuine signatures of the appellant; further submits that agent has interest as is evident from the contents of the general power of attorney, therefore, the same is irrevocable as principle laid down by the Karachi High Court in Shafiq's case PLD 1979 Kar. 22; further submits that Shahid Azim D.W.1 is an independent witness who is also writer of the general power of attorney Exh. D.2 as well as writer of Exhs. P.1 to P.61; similarly, Ch. Muhammad Sadiq D.W.2 is also independent witness, through whom the respondents have proved the execution of Exh. D/2; further submits that the general power of attorney was executed after receipt of consideration as is evident from Exh. D/1 and, thus, active consultation of the principal was not required for the sale of the land by the general attorney; further submits that appellant Salt= Ali executed general power of attorney in favour of Maqsood Ahmad respondent who has no relation with the appellant at all, hence, the judgments cited by the learned counsel of the appellant are distinguishable on facts and law as in the cited cases, general power of attorney was obtained from sisters of mother by brothers or son and thereafter on the basis of the general power of attorney, the agent had sold the land to his own son, whereas, in the present case, Maqsood is not relative of the appellant who sold the land to his real brother Muhammad Ayub. The learned counsel for the respondents have relied upon the judgment reported as Syed Shafique Hussain v. Syed Abul Qasim PLD 1979 Kar. 22 to substantiate his plea that general power of attorney is irrevocable by virtue of section 202 of the Contract Act and the relevant observation is as follows:--- "I, therefore, agree with the trial Court that the applicant having got into possession of the land for value paid and acknowledged in the agreement and he having right to usufruct till the land was finally transferred in his name, he had beneficial interest in the land which formed the subject- matter of the power of attorney which could not be, therefore, revoked by the respondent in view of section 202 of the Contract Act."
5. The learned counsel for the appellant in exercise of his right of rebuttal submits that the report 'of the handwriting expert is weak evidence. In this respect to substantiate his contention, he has relied upon the reported judgment 1985 SCMR 359 (Ch. Abdul Hamid's case); further submits that the appellant's mother and sister had floated the housing scheme and some land was kept for streets, parks etc. Therefore, out of 27 Kanals, 14 Marlas; remaining land was sold through Exhs. P.1 to P.61; further submits that the word "Begum Park" itself reveals that the land sold by appellant through Exhs. P.1 to P.61 for construction of houses to the vendees as is evident from the contents of the registered sale-deeds; further submits that the general power of attorney clearly shows that Maqsood Ahmad was given authority to sell the land to any person, therefore, it involves financial liability and the respondents had to prove execution of general power of attorney by producing two attesting male witnesses as required by Article 17 of Qanun-e-Shahadat Order, 1984, whereas, the respondents produced only one attesting witness namely Ch. Muhammad Sadiq D.W.2 while Shahid Azim D.W.1 has not signed the agreement Exh. D/2, therefore, he cannot be termed as attesting witness.
6. We have anxiously considered the arguments of the learned counsel for the parties and have perused the record ourselves. The sole question in both the appeals is whether the general power of attorney registered on 13-5-1996 (Exh. D/2) was executed by Salman Ali, appellant, in favour of Maqsood Ahmad, respondent, 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 general power of attorney which is as follows:--- {{URDU TEXT}} ' Mere reading of the aforesaid operative part reveals that Salman Ali, appellant, has authorised Maqsood Ahmad, respondent, to sell his land and receive earnest money from the buyer. The point requires for adjudication is whether Exh. D.2 General Power of Attorney 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 reproduce the provision of said Article to resolve the controversy 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"
13. ' It is pertinent to mention that the provisions contained in Article 17(2)(a) of the Qanun-e- Shahadat Order, 1984 reproduced above are based on Verse 282 of Sura AlBaqrah. The English translation of the same is as under:--- "O ye who believe! When ye deal with each other, in transactions involving future obligations in a fixed period of time, reduce them to writing. Let a scribe write down faithfully as between the parties. Let not the scribe refuse to write: as Allah has taught him, so let him who incurs the liability dictate. But let him fear his Lord Allah, and not diminish aught of what he owes. If the party liable is mentally deficient, or weak, or unable himself to dictate, let his guardian dictate faithfully. And get two witnesses, out of your own men, and if there are not two men, then a man and two women, such as ye choose, for witnesses, so that if one of them errs, the other can remind her. The witnesses should not refuse when they are called on (for evidence). Disdain not to reduce to writing (your contract) for a future period, whether it be small or big: it is justice in the sight of Allah, more suitable as evidence, and more convenient to prevent doubts among yourselves, but if it be a transaction which ye carry out on the spot among yourselves, there is no blame on you if ye reduce it not to writing. But take witnesses whenever ye make a commercial contract; and let neither scribe nor witnesses suffer harm. If ye do (such harm), it would be wickedness in you. So fear Allah; for it is Allah that teaches you. And Allah is well-acquainted with all things."
14. The aforesaid provisions of Qanun-e-Shahadat contain following pre-conditions to invoke the aforesaid provision of law:---
(i) In matters pertaining to financial if reduced to writing, the instrument shall be attested by two males.
(ii) In matters pertaining to future obligation, if reduced to writing, the instrument shall be attested by two men.
15. ' The word "financial" has been interpreted by Humble Federal Shariat Court in reported judgment Muhammad Sadiq Khan v. Federation of Pakistan (PLD 1983 FSC 43) which is reproduced as under from page 49:- "It is necessary, therefore, to refer to the dictionary meaning of the word 'Financial' when used as an adjective. The Living Webster Dictionary of the English language defines 'Financial' as of or pertaining to finance or money matters. (3rd Edition 1974,' the English language Institute of America).
16. ' The word 'Finance' in turn, bears a host of meaning which embraces all monetary transactions whether public or private. These meanings include ' Settlement with a creditor, payment of debt, parting of money at interest ' (Oxford English Dictionary)' borrowing of money at interest (Corpus Juris Secundum) the management of pecuniary fairs (The Living Webster Dictionary OP cit)."
17. ' The aforesaid definition reveals that finance means money matters, while the contents of the power of attorney clearly falls within the aforesaid definition as the appellant through the general power of attorney authorized respondent Maqsood Ahmad to sell his land and receive earnest money. In arriving this conclusion we are fortified by the reported judgment of the Division Bench of this Court in PLD 1996 Lah. 367 (Abdul Khaliq v. Muhammad Asghar Khan etc). And observed as follows:--- "The power of attorney is dated 14-11-1989 and was registered on 26-11-1989, while sum of Rs,35,000 was received by Qaiser Iqbal on 2-11-1989. Admittedly, the alleged power of attorney had not been even executed till then. Moreover, this endorsement being a financial obligation has to be attested by two witnesses who should have been examined to prove the same."
18. It is settled principle of law that where the document is required by law to be attested, the factum of non-production of attesting witnesses under Article 79 of the Qanun-e-Shahadat Order, 1984 is fatal. In other words Article 79 of the Qanun-e-Shahadat Order, 1984 is reconstructive in nature and applies only to those documents which are required by law to be attested by two witnesses. It is better and appropriate to reproduce Article 79 of the Qanun-e-Shahadat Order, 1984 which is as Under: ' 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: ' 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."
19. From the reading of the aforesaid Article, it is crystal clear that this Article has no application if the document is to be attested compulsorily under any law, therefore, requirement of Article 79 of Qanun-e-Shahadat does not have universal application and is not applicable to each and every kind of document. The Division Bench of this Court has considered Article 79 of Qanun-e-Shahadat in Muhammad Yaqoob's case PLD 1995 Lah. 395 and the relevant observation is as under:--- "The document creating financial liability as per Article 17 of Qanune-Shahadat Order, 1984 has to be attested by two witnesses."
20. ' Similarly, the same view has also been taken by the Hon'ble Division Bench of this Court in Abdul Khaliq's case PLD ,1996 Lahore 367 and relevant observation is as follows:--- "It is clear from the above that the instrument pertaining to financial or future obligations, if reduced to writing it shall be attested by two men, or one man and two women while Article 79 of the Qanun-e-Shahadat deals with the proof of execution of document required to be attested..."
21. It is clear from the provisions of law that document required to be attested shall not be used in evidence until two attesting witnesses at least have been called for to prove the same; this is subject to the following conditions:---
(i) The attesting witnesses are alive;
(ii) they are subject to the process of the Court, and
(iii) they are capable of giving evidence.
22. ' In the present case, the general power of attorney was attested by only one witness Ch. Muhammad Sadiq, D.W.2. It is pertinent to mention that Shahid Azeem D.W.1, the alleged writer, has not signed the document as a scribe or as an attesting witness.
23. ' Now the other question is whether the writer of a document can be treated as an 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."
24. ' The Privy Council has also considered definition of attesting witness in Shamu Pattar v. Abdul Kadir Rowthan's case 1912 IC, 250 (PC) and adopted the aforesaid definition of attesting witness. In Ram Samujh Singh v. Mainath Quer's AIR 1925 Oudh 737 it was observed that:--- "It is not enough that a witness should see the actual execution, he must further sign the document as a witness. "
25. In view of these circumstances, it can safely be held that a writer of a document is as good witness as anybody 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. We are supported by the following case-laws:--- ' Nirode Mohan Roy's case AIR 1950 Calcutta 401 and Muhammad Yaqoob's case AIR 1933 Sindh 257.
26. Bombay High Court and Oudh High Court had considered the proposition of law that if the writer/scribe has attested the thumb-mark of an illiterate executant, then he should be taken to have acted as an' attesting witness. Reliance can be placed on AIR 1926 Oudh 209 (Raja Ram's case) and AIR 1928 Bombay 267, (Yakubkhan Daimkhan Serguro's case).
27. ' In view of the aforesaid circumstances, D.W.1 Shahid Azim scribe/writer is not an attesting witness in terms of Article 79 of Qanun-e-Shahadat Order, 1984. It is pertinent to mention here that appellant Salman Ali had denied the execution of power of attorney in favor of Maqsood Ahmad, hence, the onus shifted upon the respondents to prove that the appellant had executed the power of attorney in favour of said Maqsood Ahmad. Nonetheless a document does not prove itself. In case of its denial, party relying upon it must prove its execution in accordance with the modes of proof laid down in the law of evidence. In the present case document i,e, Exh.D/2 was attested through local commission i,e, Mr. Mushtaq Ahmad Bhatti, Advocate who has not been produced by the respondents, thus, the respondents have withheld the said evidence.
28. It is settled principle of law that litigant is required to observe the rule of production of best evidence and if the best evidence is available but withheld from the Court then it may attract legitimate adverse presumption against the said party. The aforesaid rule fastens itself upon the respondents. Evidence produced by the respondents does not sufficiently discharge the onus of proof resting upon them.
29. It is also settled principle of law that the factum of registration was materially affected by the denial of the execution on the part of the executant unless it was proved by producing; unless it was proved by producing unimpeachable evidence, one cannot rest merely on presumptions. This factor alone justifies interference with the view adopted by the Court below. In fact, the contents of Articles 79 and 17 of the Qanun-e-Shahadat Order, 1984 were not kept in view while deciding Issue Nos. 6 and 11 and therefore, conclusion appeared to be considerably erroneous.
30. Under the law, no presumption is attached to a registered document regarding its execution where the document was challenged as forged one. The onus of proof in such a case is always on the person who asserts execution and registration of document by a particular person in his favour, therefore, appellant was not required to produce marginal witness of the document or the scribe, therefore, respondents were required to prove the document by producing at least two male attesting witnesses.
31. ' The general power of attorney Exh. D12 was executed allegedly by appellant in favour of Maqsood Ahmad, respondent which was registered on 13-5-1996, who sold 71 Kanals, 18 Marlas of land of the appellant in favor of his real brother namely Muhammad Ayub vide registered sale deed, dated 30-5-1996 for a consideration of Rs,5,90,000 therefore the same is not valid sale deed. In arriving this conclusion, we are fortified by the judgment reported as Haji Faqir Muhammad and others v.
32. Pir Muhammad and another (1997 SCMR 1811), relevant observation is as follows:--.
33. "This being so the law propounded by this Court on the scope of the holder of a general power of attorney in alienating the property of his principal in favour of those who are so closely related to the agent that ultimate beneficiary would be the agent himself, he should in his own interest obtain the consent of the principal failing which the principal is at liberty to repudiate' the transaction."
34. ' This fact clearly indicates that respondent Maqsood Ahmad obtained the power of attorney in his favour by playing fraud upon the appellant and got the land of the appellant transferred in the name of his own real brother Muhammad Ayub. The fraud played by the said respondents has caused damage to the appellant depriving him of the valuable property denying right, title and interest. It would, therefore be a clear case of fraud played by the said respondent Maqsood Ahmad upon the appellant. The fraud vitiates the contract and it is void. The trial Court has committed grave error by not appreciating the fraud played by the respondents, in proper perspective in arriving the just conclusion. We are fortified by the judgment reported as Smt.
35. Bhatari v. Smt Ram Piari (AIR 1996 SC 2754).
36. ' The learned trial Court was justified to discard the evidence of handwriting expert D.W. 6 Muhammad Idris. In addition to the reasoning of the trial Court, we are of the view, that evidence of marginal witnesses of a document and the scribe is always considered to be more reliable evidence as against evidence of expert witness and in the absence of marginal witnesses, it is not safe to rely on such expert evidence.
37. ' It is also settled principle of law that evidence of handwriting expert is a weak evidence as per principle laid down in the judgment reported as Ch. Abdul Hameed v. Deputy Commissioner (1985 SCMR 359). The judgments cited by the learned counsel of the respondents are distinguishable of facts and law and in fact supported the case of the appellant.
38. ' Another aspect of the matter is that the stamp paper for execution of general power of attorney had been purchased by Muhammad Ayub, in whose favour, ultimately sale deed had been got registered by the general attorney within one month who had admittedly had no authority to purchase the stamp papers on behalf of Salman. Furthermore, Muhammad Ayub and Maqsood Ahmad have specifically taken the plea in their own suit that payment of sale price amounting to Rs,36,06,000 has been made to Salman Ali through Bank Draft duly got cashed by him but no proof has been led to prove such payment through Bank Draft.
39. ' For the foregoing reasons, we have come to the conclusion that the finding of the trial Court on Issues Nos.6 and 11 are result of surmises and conjectures and the learned trial Court failed to appreciate the evidence on record in accordance with the principle prescribed by the superior Courts as mentioned above, therefore, findings of the trial Court on Issues Nos. 6 and 11 are reversed, as a result thereof, the suit of the appellant Salman Ali is decreed in his favour and the suit filed by Maqsood Ahmad and Muhammad Ayub against Suleman Ali is hereby dismissed.
40. ' In view of what has been discussed above, both the appeals are allowed and disposed of in the aforesaid terms and the cost shall follow the events.