' Appellant Altaf Hussain filed a suit for specific performance of agreement to sell of land measuring 68 kanals described in detail in the head note of the plaint. As per plaint it is alleged that respondent who was the owner of the suit land agreed to sell the same in favour of the appellant and executed an agreement of sale, dated 2-2-1974 for a sale consideration of Rs,1,800.
Out of this a sum of Rs,7,900 was allegedly paid as earnest money against which a receipt was also duly executed by the respondent. The respondent seriously contested the suit and in his written statement urged that he was an old, infirm and blind man of 80 years of age and that he had never executed any agreement to sell with the appellant. He also denied having received any payment as earnest money.
2. From the pleadings of the parties, learned trial Court framed the following issues:--- ' Issues
(1) Whether the defendant executed agreement of sale, dated 2-2-1974 and received Rs .7 ,900 as earnest money? OPP:
(2) If so whether the said agreement is a result of fraud and misrepresentation? OPP.
(3) Relief.
3. The learned trial Court after recording of evidence found Issue No,1 in favour of the plaintiff/appellant and finding Issue No,2 against the respondent decreed the suit of the appellant vide judgment and decree, dated 25-2-1986.
4. The respondent, aggrieved of the said decree filed an appeal which was accepted vide judgment 'and decree of the appellate Court, dated 1-2-1986 by which the decree for specific performance passed by the trial Court in favour of the appellant was set aside.
5. Mr. M . M . Bhatti , Advocate appeared on behalf of appellant while Mr. Bashir Ahmad Choudhary, Advocate appeared for the respondents.
6. Learned counsel for appellant raised the following contentions:---
(i) that an agreement to sell Exh.P.1 and receipt of earnest money Exh.P.2 were documents which were not required to be attested under the law and the non-examination of the marginal witness was inconsequential.
(ii) that the production of the scribe of Exh.P.1, was sufficient to prove the said document.
(iii) that there was sufficient evidence on the record in the shape of the statement of P.W.1 Asghar Ali Shah, Muhammad Yousaf P.W.3 and plaintiff himself as P.W.2 to prove the agreement to sell P.1 and the receipt P.2.
(iv) that Exh.P.3 (F.I.R.) and Exh.P.10 (judgment) fully corroborated the evidence of appellant.
7. On the other hand, the learned counsel for the respondent submitted that the original defendant/respondent namely Fazal Shah was an old, illiterate and blind man and the agreement to sell in such circumstances, particularly when it is denied by the defendant must be proved by strong and cogent evidence. He relied upon Taj Din. v. Abdul Rehman PLD 1983 Karachi 825, Sarten Bibi. v. Muhammad Niamat Din Gondal PLD 1965 Dacca 531 and N.B.P. v. Mst. Hajra Mai PLD 1985 Karachi 431.
8. He further submitted that agreement to sell as well as the receipt were documents which required attestation under the law and without the production of at least one attesting witnesses, the said document could not be proved.
9. In order to appreciate, the contention of the learned' counsel for the parties, Article 17 of Qanun- e-Shahadat Order, 1984 shay be referred to. It provides as under:--- ' ARTICLE.
17.
"Competence and number of witnesses.---(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 on,' man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly and
(b) In all other matters, the Court may accept or act on the testimony of one man or one woman, or such other evidence, as the circumstances of the case may warrant."
10. In case of transaction of sale witnessed by an agreement to sell, the document if reduced into writing pertains to future obligations of both the parties and is required to be attested by two men or one man or two women. Although Article 17 has been incorporated by the Qanun-e-Shahadat Order, 1984, the provisions of this Article are cradled in the Islamic Law as cained in Sura-Al-Baqrah Verse 282 i,e, the transaction involving suture obligations or dealings involving loan or a contract of debt (Tathim-ul-Qur'an by AbulAla-Madoodi). In this view of the matter while appreciating the strength of evidence, reliance shall be placed upon the said Injunctions of Islam despite the fact that in the present case Article 17 was not on the A statute book on 2-2-1974 when the agreement to sell was executed. The learned counsel for the petitioner relied upon Manzoor Hussain Khan v.
Asia Begum and 21 others (1990 CLC 1014), by which the Civil Revision was dismissed in limine to canvass the point that under Article 79 an agreement to sell does not require to be attested by witnesses. In my. Humble estimate the effect of Article 17 of the Qanun-e-Shahadat based as it is upon Quranic Injunctions was not brought to the notice of the Court in that case. This view also finds support from the case of Abdul Khaliq v. Muhammad Asghar Khan and 2 others (PLD 1996 Lahore 367). In this case it was held that an agreement to sell being an instrument pertaining to financial or future obligations and having been reduced into writing same was required to be attested.
11. Further submission of the learned counsel for the respondent is that in case of an illiterate person particularly when he is also old and blind utmost caution has to be exercised in matters in which such a person is involved in transacting his immovable property.
12.In this context it is emphasised that the same yardstick of care and caution and of adequacy of evidence has to be applied in such case as it is applied to the case of old, illiterate and infirm women-folk. Therefore, the first thing to be seen is whether appellant/plaintiff has succeeded to discharge the burden of proof in regard to the execution of agreement to sell, dated 2-2-1974.
Exh.P.1 is scribed on a simple piece of paper and not on a stamp paper. The production of a scribe who is not a Wasiqa Navees and who obviously could not make any entries in any Wasiqa Navees register, shall not be worthy of such credence, no marginalia witness was produced, a document does not prove itself. A party relying upon a document- which is denied by the opposite party must prove its execution in accordance with law. In such a case the rule of best evidence has to be followed and if such best evidence is not produced, the standard of proof required to prove the document shall be lacking. A perusal of evidence on the record would show that the evidence of appellant/plaintiff comprises of the statement of P.W.1 Asghar Ali Shah the scribe, the statement of Muhammad Yousaf as P.W.3 and finally the statement as P.W.2 of the plaintiff as his own witness.
Neither Waryam nor Abdul Khaliq were produced. The statement of the scribe has no evidentiary value as he has signed it merely as a scribe and not as a witness. Ordinarily, the scribe writes out the document and signs his name before the executant signs the document. It is, therefore, not proper to treat the scribe as an attesting witness. Reliance has placed on Privy Council decision in Shamu Patter v. Abdul Qadir (16 IC 250). The further submission of the learned counsel for the appellant that Exh.P.3 read with Exh.P.10 supported the contention of the appellant also does not advance the case of the petitioner. The agreement to sell and the receipt has to be proved by strong and independent direct evidence. Even if Exh.P.3 and Exh.P.10 were available for reliance it would be no substitute for direct evidence of proof of the agreement to sell and the receipt.
13. For the foregoing reasons, this regular second appeal has no merit and is hereby dismissed leaving the parties to bear their own costs.
Second .