JUDGMENT SAYED ZAHID HUSSAIN, J.~ Judgment of the learned Additional District Judge, Depalpur dated 13.5.1997, whereby, the appeal filed by the appellant was dismissed, has been challenged in this second appeal, which arises in the following circumstances :-
2. A suit for specific performance was filed by the respondent against the appellant on 18.6.1991, claiming an agreement to sell dated 9.8.1989 for land measuring 368 Kanal, 18 Marlas, situated in Mauza Shadiwal, Tehsil Depalpur District Okara for Rs. 2,00,000/-. Out of which, a sum of Rs.
1,75,000/- was claimed to have been paid and the balance of Rs. 25,000/- was to be paid on 19.8.1989. It was his case that instead of performing the said agreement the appellant sold the land to Rao Sultan Alam and others, (who were initially impleaded as defendants No. 2 to 7 but deleted, later on) on 16.5.1990 which sale was made in the presence of a stay order by the learned Civil Court. The suit was contested by the appellant denying the execution of any such agreement. He also denied any sale in favour of Rao Sultan Alam and others regarding which he had filed a suit against Rao Sultan Alam and others. The suits were initially consolidated. The controversy, spelt out from the pleadings of the parties, gave rise to issues framed by the learned Trial Court. As the suit of the appellant against Rao Sultan Alam and others was latter disposed of on the basis of the statement, made by the defendants therein, the learned Trial Court had to recast the issues in the present suit. Both the parties produced evidence in support of their respective pleas. The suit was decreed by the learned Trial Court on 6.11.1995 and the appeal filed there-against by the appellant, was dismissed by the learned Addl. District Judge on 13.5.1997. Hence this second appeal.
3. It is contended by the learned counsel for the appellant that agreement dated 9.8.1989 Ex.P 1 is a forged document, never executed by the appellant nor any money received by him and the evidence, brought on the record by the respondent/plaintiff to prove the same was deficient, contradictory in material respects to which no credibility could be attached. It is further contended that a simple comparison of signatures on Ex.Pl with the National Identity Card, the Passport and the Agricultural Pass Book of the appellant would have led to the conclusion that Ex.Pl was a forged document. His contention is that the findings, recorded and the conclusions drawn by the Courts below are result of gross misreading and non consideration of evidence on record which are not immune from scrutiny in appeal. It is contended that non production of Muhammad k Usman, the so called attesting witness and Zakkiullah Bajwa, Advocate, 1 had adverse effect on the case of the respondent/plaintiff. It is contended that the Courts below have erred in law in decreeing the suit, filed by the respondent. He has placed reliance on Muhammad Sarwar and another v. Fazal Rehman's (1982 CLC 1286), Zafar Iqbal etc. v. Yaqoob etc. (1994 Law Notes (Lahore) (1159), Abdul Khaliq v. Muhammad Asghar Khan and 2 others (PLD 1996 Lahore 367), Manzoor Hussain v. Mst. As a Begum and others (1990 Law Notes (Lahore) (489) and Shamsher AH v. Sardar Khan (1991 CLC Note 133).
4. On the other had, the learned counsel for the respondent vehemently contended that in second appeal findings of fact as to the execution of agreement cannot be examined unless there was manifest misreading of ev idence. It is further contended that execution of agreement was proved on record by cogent evidence, led by the respondent. His further contention is that the parties are bound to honour their solemn transaction and the appellant is not entitled to any relief from the Court. In support of his contentions he relies on Abdul Wali Khan through Legal Heirs and others v.
Muhammad Saleh (1998 SCMR 760), Muhammad Ramzan v. Mst. Yaqoob Begum and others (1991 SCMK 819), Mst. Noor Bibi and 9 others v. Ghulam Rasoof (1991 SCMR 1281), Manzoor Hussain Khan v.
Mst. As a Begum and 21 others (1990 CLC 1014) and Malik Muhammad Hayat Khan v. Subedar Yar Muhammad Khan (PLD | 1966 SC 612).
5. On having a look at Ex.P! And the alleged signature thereon as Kursid Hasan attributed to the appellant and his signature on the National j Identity Card, Passport and Pass Book, I was impelled to consider the I evidence of the parties in some depth in order to determine the correctness and legality of the findings of the Courts below. I am conscious of the constraints of this Court in second appeal and the view that ordinarily concurrent findings of fact cannot be interfered. This, however, is not an absolute rule as this Court cannot shut its eyes when there is an apparent mis-reading of evidence and manifestly illegal conclusions have been drawn by the Courts below. A manifest injustice cannot be permitted to be perpetrated simply for the reason that in second appeal this Court should not have a look at the evidence which formed the basis for the findings recorded by the Courts below. Where the findings cannot be supported by the evidence on record or the evidence is mis-read or the decision is in disregard of the evidence or is arrived at without due regard to the same, this Court is amply justified to consider the evidence and if necessary to interfere with the findings of the Courts below. Reference may be made to Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617), Mst. Bibi Jan v. Habib Khan and another (PLD 1975 SC 295), Nazar Muhammad and another v. Mst. Shahzada Begum and another (PLD 1974 SC 22), Mst. Fatima v. Khuda Bux (PLD 1959 Lahore 826) and Muhammad Afsar and 7 others v. Allah Ditta and 13 others (1970 SCMR 118).
6. Ex.P 1 purports to be an agreement by Khurshid Ahmed alias Wahid Hassan, son of Askari Hassan.
It is written by Abdul Haq, Waseeqa Navees and witnessed by Muhammad Usman and Muhammad Shabhir with an identification by Zakkiullah Bajwa, Advocate, Okara. It is signed like this KURSID HASAN and is so written at three places. The stamp paper of Rs. 51- on which it was written was purchased from Muhammad Tufail Chohan, Stamp Vendor. As the execution of the said agreement was denied by the appellant, issue No. 4 as to whether the agreement to sell dated 9.8.1989 was executed by the defendant in favour of plaintiff was framed by the learned Trial Court.
The onus to prove of which was on the respondent/plaintiff.
7. In order to prove the execution of the agreement the respondent/plaintiff examined Mian Zafar Iqbal, Advocate/PW 1, who stated to have attested the same. He however, could not state in definite terms as to whether the appellant had appeared before him. He stated that he did-not know him personally nor he was able to give his description. Abdul Haq, PW2, scribe of Ex.Pl stated that the same was written and signed by him and Rs. 1,75,000/- were paid in his presence. He, however, stated that he did not know the appellant personally. .Muhammad Shabhir, PW 3 stated that Ex.P 1 was written in his presence1 and was signed by him. He also stated about the presence of Muhammad Usman. It was stated by him that Khurshid Ahmed had signed in his presence as Khurshid Ahmed in Urdu and not as Khurshid Hasan. He further stated that Khurshid filmed was identified by Mr. Bajwa, Advocate. Muhammad Akram Khan, PW 4/, respondent/plaintiff also appeared and, of course, stated in his on favour. He, however, stated that the signatures of the appellant/defendant on Ex.Pl were in English.
8. The appellant/defendant appeared as DW 1 and denied the execution of any such agreement or receipt of money. He dis-owned the signatures borne on Ex.PL He stated that he signs in Urdu and produced his N.I.C., Agricultural Pass Book and Passport before the learned Trial Court. Syed Hassan Askari, DW 1, who is son of the appellant/defendant also denied the execution of agreement by the appellant or receipt of any money. It was stated by him that his father always signs in Urdu.
9. In the presence of the aforesaid depositions of the witnesses a question arises as to whether the respondent/plaintiff succeeded in proving the execution of Ex.P 1 by the appellant/defendant. First of all, the perusal of the document which purports to bear the signature as KURSID HASAN, whereas, the appellant is Khurshid Ahmed and signs in Urdu as Khurshid Ahmed creates a reasonable doubt as to its genuineness, it is strengthened from the following:-
(i) Mian Zafar Iqbal, PW 1 and Abdul Haq PW 2 stated that they did not know the appellant/defendant personally rather th ir statement was that he was not known to them.
(ii) The person who identified the appellant/defendant nam;ly Zakkiullah Bajwa was not produced in evidence before the learned Trial Court.
(i.e) The statement of PW 3 Muhammad Shabhir who claims to be present at the time of execution of agreement looses its importance when he stated that the appellant had signed in Urdu as Khurshid Ahmed and not as Khurshid Hasan. This is negation of the contents of the document itself.
(iv) The assertion of PW 3 is belied by the statement of Muhammad Akram, PW4 (respondent/plaintiff) who stated that he had signed in English as Khurshid Hassan.
(v) The depositions of all these four witnesses on a material point as to the execution and signature by the appellant/Plaintiff were contradictory to each other and did not inspire confidence. Thus no credibility could be attached to base any finding thereon.
(vi) There was no explanation by the respondent/plaintiff as to the non production of Zakkiullah Bajwa, Advocate, who purported to identify the appellant/Plaintiff Muhammad Usman, the attesting witness and Muhammad Tufail Chohan, Stamp Vendor.
(vii) The effect of their non production and adverse inferences deducible there from against the respondent/defendant could not be avoided. He could have taken steps to produce the said persons which he did not for no reasons. It may be noted that a Vakalatnama said to have been signed by the appellant/Plaintiff in favour of one Abdul Mujib Khan, Advocate, in an other suit, was categorically dis-owned and denied by the appellant/defendant, but the said Advocate Abdul Mujeed Khan was also not produced by the respondent/plaintiff.
All these circumstances lead to an irresistible inference and conclusion that the respondent/plaintiff failed to prove the execution of Ex.PI by the appellant/defendant.
10. Affirmance of the view of the learned Trial Court by the first appellate Court simply for the reason that the learned Trial Court had thoroughly I examined the evidence was not enough. As a Court of first appeal, it had to come to its on independent conclusion on appreciation of the evidence on record. I, am, therefore, unable to subscribe to the conclusions drawn by the two Courts below or to uphold their approach in the matter.
11. The reliance of the learned counsel for the respondent on Abdul Wali Khan's case (supra) is not apt in the facts and circumstances of the present case, inasmuch as the deposition of the marginal witness Muhammad Uris in that case was found sufficient to prove the document and it was, therefore, held by their lordships that findings of fact could not be interfered with by the High Court unless "it was shown that such a finding by the lower Court suffer from mis-reading or non reading of evidence which had affected the findings on merits."
12. In the present case, according to my assessment and estimation of the evidence on record, the findings of the two Courts on the question of execution of agreement Ex.PI are palpably wrong and liable to be interfered with.
13. The sufficiency of the number of witnesses to be produced in a case where execution of a document is to be proved may depend upon the facts and circumstances of a particular case.
14. In the case of Manzoor Hussain Khan (supra) relied upon by the learned counsel for the respondent it was observed that in case of denial of execution of a document the party relying upon it must prove its execution in accordance with the does of proof laid down in the law and that the plaintiff in such a case can succeed on the strength of his on case and not on the weakness of the case of adversary. It indeed supports the case of the appellant.
15. In this view of the matter, the findings recorded and the conclusions drawn by the two Courts below, that Ex.PI was executed by the appellant/defendant do not find support from the evidence on record, as such, no sanctity can be attached to them; The respondent/plaintiff failed to prove the execution of Ex.PL His suit, therefore, ought to have been dismissed. Resultantly, this appeal is accepted. The judgment of the learned Addl. District Judge, Depalpur and that of the learned Trial Court are set aside.
No order as to costs.