' Ghulam Siddique now dead and represented through his legal heirs filed suit in the Court of learned Civil Judge, Peshawar for possession of a Sarai consisting of 13 rooms (Kotajat), two shops and vacant site situated at Nauthia Qadeem, Peshawar, the boundaries of which have been given in the heading of the plaint. He also prayed for grant of decree for mesne profit with effect from 12- 5-1976. The suit was resisted by the defendants-respondents by filing written statement. The learned trial Court after framing issues and recording pro and contra evidence of the parties dismissed the suit vide judgment and decree, dated 8-7-1979. Being aggrieved with the said judgment and decree, the plaintiff-petitioner filed appeal in the Court of learned Additional District Judge, Peshawar, which was also dismissed vide judgment and decree, dated 6-12-1986. Ghulam Siddique then filed Revision Petition (No,121 of 1987) before this Court which was accepted vide judgment, dated 15-11-1988. While accepting the said revision, this Court set aside the judgments and decrees of the learned Courts below and remanded the case to the trial Court for re- determining the question of genuineness of the receipt Exh.P.W.3/A and framed two issues. The parties, as per the said judgment, were at liberty to adduce fresh evidence if they, so desired. After the remand of the case, the learned trial Court provided opportunities to both the parties to adduce evidence in support of their contentions and eventually the suit filed by Ghulam Siddique was dismissed vide judgment and decree, dated 26-10-1991. He once again filed appeal in the Court of learned Additional District Judge, Peshawar which was accepted vide order, dated 2-5- 1992 and the case was once again remanded to the learned trial Court to re-determine the question of receipt Exh.P.W.3/A and to send the same to the Handwriting Expert for comparison with the signature of the plaintiff, where opportunities were given to the parties to adduce evidence. The defendants-respondents were directed to produce the original receipt Exh.P.W.3/A but it was brought to the notice of the trial Court that the original receipt of Exh.P.W.3/A had been misplaced.
This fact was duly supported by an affidavit, dated 15-9-1991. The parties did not produce any further evidence and relied upon the evidence already recorded. Once again the suit of the plaintiff was dismissed vide judgment and decree, dated 3-7-1994. Being aggrieved with the said judgment and decree, Ghulam Siddique filed Appeal No,171 of 1994 which too was dismissed by the learned Additional District Judge, Peshawar vide judgment and decree, dated 21-11-1994. Being not satisfied with the judgments and decrees of the Courts below, the petitioner has assailed the same through the revision petition in hand.
2. Mr. Saeed Baig, the learned counsel representing the petitioner argued that the petitioner was owner of the property in dispute. He had entered into an agreement to sell the said property for a sale consideration of Rs,20,000 in favour of the respondents. He received an amount of Rs,1,000 in advance and Rs,15,000 before the Sub-Registrar on 13-5-1968. The agreement deed No,823 Exh.P.W.1/1 was registered in the office of Sub-Registrar, Peshawar on 13-5-1968. The remaining amount of Rs,4,000 was agreed to be paid to him (plaintiff) after ten years by executing the receipt.
It was on 13-5-1968 that another agreement Deed No,824 Exh.P.W.1/2 was also executed by and between the parties in respect of the suit property whereby it was agreed that on completion of ten years from the date of registration if the respondents defendants failed to pay the said amount of Rs,4,000, the plaintiff would have the option to ask for the return of the property by refunding Rs,16,000, the amount received by them and in case of failure of the respondents to abide by the terms of the said agreement, the plaintiff would be at liberty to file suit for the return of the property. It was argued that the time of the contract, therefore, was essence. Ghulam Siddique did not receive Rs,4,000 the remaining amount, therefore, he was obliged to file suit.
3. It was further argued that the receipt Exh.P.W.3/A was forged and the respondents failed to produce the same. The trial Court was directed by this Court to call for the original receipt Exh.P.W.3/A and send the same to the Handwriting Expert but the respondents failed to produce the original of Exh.P.W.3/A and came out with excuse that the original had been lost and, therefore, they have failed to fulfil their legal duty.
4. It was also argued that it was not understandable as to why, on payment of Rs,4,000, the remaining sale consideration, the respondents failed to get Deed No,824 Exh.P.W.1/2 cancelled and the receipt Exh.P.W.3/A as per Article 103 of the Qanun-e-Shahadat Order could not vary the terms of the said deed.
5. On the other hand, Sheikh Wazir Muhammad the learned counsel representing the respondents, argued that there were concurrent findings of the Courts below that the remaining amount of sale consideration i,e, Rs,4,000 had been paid to Ghulam Siddique petitioner and in this respect one of the marginal witnesses, namely, Misri Khan has categorically stated that the amount of Rs,4,000, the remaining sale consideration, was paid to Ghulam Siddique in his presence. Similarly, the son of Abdullah Jan named Attaullah, who was marginal witness to the receipt Exh.P.W.3/A had also identified the signature of his father who had by then expired. It was further argued that the original deed was produced thrice in the Court and the learned trial Court after examining the same returned to one of the respondents but it had been lost. This fact was supported by an affidavit but there was no counter-affidavit given in the Court.
6. It was also argued that Ghulam Siddique was examined in Court twice and he had admitted that his signature was similar to the signature appearing on Exh.P.W.3/A, but he failed to prove his case, therefore, the Courts below, while appreciating the evidence on record had rightly dismissed the suit and the appeal which need no interference.
7. I have heard the learned counsel for the parties and perused the record.
8. In this case the claim of Ghulam Siddique was that he was owner of the suit property and the sale bargain was struck by him with Gul Muhammad, Wazir Muhammad and Abdul Majeed predecessors of the respondents for sale consideration of Rs,20,000. This transaction was reduced into writing and a deed in this respect was registered on 13-5-1968 under No,823, Exh.P.W.1/1.
Simultaneously, on the same date, another agreement to recovery the property was also executed between the parties which was registered in the office of Sub-Registrar, Peshawar under No,824, Exh.P.W.1/2. It is admitted by the parties that the said deeds were executed by and between the parties mentioned in the deeds and there is no dispute about the fixation of sale consideration of Rs,20,000. It was also admitted by the predecessor of the petitioners (Ghulam Siddique) that he had received a sum of Rs,1,000 in advance and out of the balance amount an amount of Rs,15,000 was received by him before the Sub-Registrar, Peshawar when the said agreements, Exh.P.W.1/1 and Exh.P.W.1/2, were executed. About the balance of Rs,4,000 it was stipulated that the same will be paid after the period of ten years and in case the said amount is not paid within the stipulated period, the property would be reconveyed to him (Ghulam Siddique) on payment of the amount received by him i,e, Rs,16,000. This stipulation is also not in controversy between the parties. The only dispute between the parties is that Ghulam Siddique, while filing the suit, stated in the plaint that he did not receive the remaining sale consideration of Rs,4,000 after ten years, therefore, he offered to pay back the received amount of Rs,16,000 to the legal heirs of the deceased Gul Muhammad, Wazir Muhammad and Abdul Majeed but they refused to return the property, therefore, he was constrained to file the suit. The stand of the respondents is that they paid Rs,4,000 on execution of proper receipt by Ghulam Siddique on 25-11-1968 and the receipt was duly witnessed by two marginal witnesses which had been placed on record as Exh.P.W.3/A, therefore, there was no question of restoration of the suit property to the plaintiff on payment of Rs,4,000 by him and the respondents had become full-fledged owners of the property. The dispute/controversy between the parties in fact revolves around the receipt, dated 25-11-1968 Exh.P.W.3/A.
9. The plaintiff examined Ashfaq Ahmad (P.W.1) who stated that his father Abdul Hakeem, who was a deed-writer, died in the dear, 1975. He produced copies of the deeds, dated 13-5-1968 and placed on file as Exh,P.W.1/1 and Exh,P.W.1/2. He identified that the said deeds were scribed by his late father.
Sher Muhammad Moharrir Sub-Registrar, Peshawar was examined as P.W.2, who also produced copies of the registered deeds under Nos.823 and 824. Ghulam Siddique plaintiff appeared as P.W.3 and reiterated the stand taken by him in the plaint. The evidence of the plaintiff was thus, closed on 15-3-1983. From the defendants' side, Sikandar Javed son of Gul Muhammad deceased appeared for himself and on behalf of other legal heirs and stated that the vendees after about two years of execution of the sale-deed had contacted the plaintiff for -receipt of Rs,4,000, who agreed to receive the same and the vendees paid Rs,4,000 to the plaintiff in presence of Ilaqa Chairman, Union Committee and Misri Khan who has struck the bargainof sale between the parties and receipt, dated 25-11-1968 was duly executed by the plaintiff which was placed on file as Exh.P.W.3/A. It is worthy mentioning that this witness produced the original receipt and the Court after examining the same returned it to the witness. Attaullah son of Abdullah Jan appeared as D.W.2 who identified the signature of his father Abdullah Jan and the receipt Exh.P.W.3/A. Misri Khan son of Ghulam Sarwar, one of the marginal witness of Exh.P.W.3/A, was examined as D.W.3 who stated that he had struck the bargain as a broker between the parties and the vendees paid Rs,4,000 to the plaintiff in his presence. Exh.P.W.3/A was duly signed by the plaintiff in his presence.
The evidence of the defendants was thus closed on 1-11-1983.
10. On remand, once again the plaintiff examined Mujahid Ali, Moharrir Registration (P.W.1) who placed on file copies of registered deeds under Nos.823 and 824, dated 13-5-1978 as Exh.P.W.1/1 and Exh.P.W.1/2. Ghulam Siddique plaintiff appeared as P.W.2. He reiterated the stand taken by him in the plaint. From the defendants' side, statement of the learned counsel represented them was recorded in the following words:-- "I rely on the evidence already recorded before remand. Since the plaintiff after remand did not appear, as such I do not need to produce any other evidence.
(Sd.) Sheikh Wazir Muhammad; Advocate."
11. On the basis of the abovementioned evidence the suit filed by Ghulam Siddique was dismissed and his appeal had met the same fate. When the matter was brought before this Court in Civil Revision No,121 of 1987, this Court, while remanding the case back to the learned trial Court, held as under:-- "Consequently, I accept the revision petition, set aside the judgments and decrees of the Courts below and remand the case to the trial Court for re-determining the question of genuineness of the receipt copy Exh,P.W3/A. Par this purpose, I frame the following issues as well:-
(1) Whether the receipt, dated 25-11-1966 carries the signature of the plaintiff as its executant?
(2) On proof of issue No,1, whether the receipt operates to extinguish the rights of the plaintiff to have the property reconvened on payment of sale amount of Rs,16,000?
' In respect of these issues the parties be at liberty to adduce fresh evidence . "
12. On receipt of the case filed after remand, the learned trial Court provided opportunities to the parties to adduce evidence in support of their respective contentions/claims. The trial Court vide order, dated 7-5-1991 directed the parties to produce the original registered deeds, agreement and receipt alongwith copy of plaint and Wakalatnama showing the signatures of the plaintiff thereon so that the same and the signature taken on above date are sent for opinion of the Handwriting Expert. The case was posted for opinion of the Handwriting Expert to 28-5-1991. It was on 30-5-1991 that the defendants submitted an application for exemption from bringing the original deeds and receipts because the same had been produced in Court on 26-4-1983 and after examining the same had been returned to the witness. It was also stated in the application that the plaintiff had filed an application on 20-5-1983 to the effect that the receipt Exh.P.W.3/A be sent to the Handwriting Expert for comparison of his signature but it was dismissed by the trial Court vide order, dated 4-6-1984 which had become final as no appeal or revision was filed thereagainst.
Moreover, the original of Exh.P.W.3/A had been lost by them. This application was duly supported by an affidavit. It is worth-mentioning that no counter-affidavit was filed by the other side. Since the original receipt Exh.P.W.3/A was not produced, therefore, the specimen could not be sent to the Handwriting Expert for opinion.
13. Now the evidence available on record regarding the execution of receipt Exh.P.W.3/A is the statement of Sikandar Javed son of Gul Muhammad deceased recorded on 26-4-1983 in which he clearly stated that the amount of Rs,4,000 was paid to the plaintiff by the predecessors of the defendants in presence of the Chairman, Union Committee and Misri Khan. The receipt Exh.P.W.3/A in original was produced before the Court and after examining the same it was returned. The said receipt was exhibited without any objection from the other side. Misri Khan (D.W.3), a marginal witness of the receipt Exh.P.W.3/A, in so many words clearly stated that he was marginal witness of the receipt Exh.P.W.3/A which was signed by him and Abdullah Jan, Chairman as marginal witness.
Ghulam Siddique plaintiff had also signed in his presence. He also stated that a sum of Rs,4,000 had been paid to the plaintiff in his presence as well as in the presence of Chairman. Attaullah son of late Abdullah Jan had identified the signature of his father on receipt Exh.P.W.3/A. D.Ws.2 and 3 were confronted with the original receipt of Exh.P.W.3/A, these two witnesses were examined on 27- 9-1983 and 1-11-1983 which mean that the original receipt of Exh.P.W.3/A on both dates were produced in Court. Ghulam Siddique plaintiff had been examined twice, first pre-remand and second after the remand. When he was examined on 15-3-1983 (pre-remand), in cross- examination he stated as under:-- "I have seen the original receipt dated 25-11-1968, the copy of which is Exh.P.W.3/A, the signature bearing in the original receipt resemble my signature."
' Neither the said receipt Exh.P.W.3/A, as mentioned above, was placed on record with objection from the plaintiff nor the plaintiff denied the signature thereon in cross-examination. Rather he admitted both the signatures which resemble his signature. Then for the second time he was examined on 12-11-1990 and cross-examined on 7-5-1991. In his cross examination he stated as under::- "I was cross-examined by the defendants' counsel. It is correctly mentioned in my cross- examination, dated. 15-3-1983 that Misri Khan who is now alive have conducted the sale transaction etc. Between me and the predecessor of the defendants. It is correctly recorded in my previous statement that Misri Khan was the marginal witness of the deed. It is wrongly recorded in my previous cross-examination, dated 15-3-1983 that I have seen the original receipt, dated 25-11- 1968, the copy of which is Exh.P.W.3/8. The signature bearing on the original receipt resemble to my signature. It is also wrongly recorded in my previous statement in the cross-examination that it was never agreed between the parties that the defendant paid Rs,4,000, the sale transaction will be considered as complete."
14. The close examination of the evidence available on record indicates that the respondents have proved the execution of receipt Exh.P.W.3/A and theft is no evidence worth the name on file to show that the said receipt Exh.P.W.3/A was forged and fictitious. On the contrary, the attesting witnesses have testified to its genuineness. It was the onus of the plaintiff to prove by positive evidence that the disputed receipt Exh.P.W.3/A was forged and fabricated. The mere denial of the A plaintiff, was not sufficient to set at naught the evidence produced by the respondents. The mode of proof of execution of a document has been laid down in Articles 72 to 89 of the Qanun-e-Shahadat Order, 1984. It has been held in a number of judgments that ordinary meaning of executing a document is signing a document as consenting party thereto. Execution consists in signing a document written out, read, over and understood by the person signing it. Execution can be proved by calling the person who signed or wrote the document or a person in whose presence that document was signed or written or by calling the Handwriting Expert who has examined the disputed signature.
Moreover, execution can be proved by calling a person acquainted with the handwriting of a person who had signed or written it; and lastly the Court can compare the disputed signature or writing with some admitted signature or writing. Even circumstantial evidence can be adduced in proof of execution of the document. In the case in hand, the receipt Exh.P.W.3/A had been lost and was not sent to the Handwriting Expert for comparison of the signature of Ghulam Siddique with his admitted signature. At this stage, the question arises as to whether the opinion of the Handwriting Expert is binding on the Court, the answer of this proposition has been given by, the august Supreme Court of Pakistan in a number of judgment. In Ch. Abdul Hamid v. Deputy Commissioner and others 1985 SCMR 359 it was held that the opinion of the Handwriting Expert, of all kinds of evidence admitted in a Court, was the most unsatisfactory. Such evidence was so weak decrepit as scarcely to deserve a place in system of jurisprudence.
15. A passage from the law of Evidence Volume I written by his Lordship M. Monir Khan, J., as he then was, from page 621 would clarify the position which is to the following effect:-- "Of all kind of evidence admitted in a Court, this is the most unsatisfactory. It is so weak and decrepit as scarcely to deserve a place in our system of jurisprudence. In view of this infirmity of expert testimony, it is settled practice of Courts not to base a finding merely on expert opinion.
Conclusion based on mere comparison of handwriting must at best be indecisive and yield to the positive evidence in the case."
16. The same view has been expressed by the august Supreme Court of Pakistan in Syed Shabir Hussain v. The State 1968 SCMR 1226 in the following words:-- "The evidence of the Handwriting Expert is neither the only nor the best method of proving the handwriting or signature of a person. It is at best only opinion evidence."
'Keeping in view the above dictum laid down by the august Supreme Court of Pakistan it can be safely held that even if the opinion of the Handwriting Expert was available on record, the same would have been a weak type of evidence and decrepit as scarcely to deserve serious consideration because the Court of law are not under legal obligation to base their findings merely on Expert's opinion. There must be positive evidence available on record to prove a particular document.
17. Another question which arises here in that can the defendants-respondents be punished by passing decree against them because they had failed to submit the receipt Exh.P.W.3/A in Court as the same had been lost, the answer is in negative. As mentioned above, the original receipt Exh.P.W.3/A was produced by the defendants-respondents thrice in Court during recording of evidence. It was again produced when it was confronted to the petitioner Ghulam Siddique when, his pre-remand statement was recorded. There was no fault on the part of the respondents if the trial Court did not exhibit the original receipt on record and the same was each time returned to the party producing it after examining by the Court. A similar question came up for hearing before the august Supreme Court of Pakistan in Mirza Muhammad Sharif and others v. Mst. Nawab Bibi and others 1993 SCMR 462 and it was held as under:-- "There is no cavil with the legal requirement of law as discussed by the learned Judge of the High Court and we would have readily concurred with him if the original sale-deed had not been tendered in evidence by appellant No,1 while stating the case of the appellant as D.W.4. He did comply with the mandatory provision of the Civil Procedure Code by producing the primary evidence viz. The registered sale-deed and if the trial Court rested content with exhibiting the certified copy thereof and returned the original presumably for safe custody, without any objection by the opposite side, we do not find any fault on the part of the defendants/appellants in not insisting upon the Court for exhibiting the original."
18. Adverting to the other argument of the learned counsel for the petitioners that the receipt being a registered document under Article 103 of the Qanun-e-Shahadat Order, 1984 can only be contradicted and varied through another registered instrument and not otherwise has no force for the reason that the receipt Exh.P.W.3/A was not an instrument/document through which the deeds Nos.823 Exh.P.W.1/1 and 824 Exh.P.W.1/2 could either be contradicted or varied. Moreover, the receipt did not require any registration under the Registration Act. In Goseti Sobba Raw and others v.
Varigonda Narasimham 17 Mad. P.368 an usufructuary mortgage deed had been executed in favour of one Subbarayudu. The said deed was registered. Subbarayudu died and his adopted son brought a suit to recover a portion of the land so mortgaged, alleging that during his minority the first defendant had taken wrongful possession of the property. The first defendant was the heir of the mortgagor. His defence was that the equity of redemption had become vested in himself and another as the heirs of the deceased mortgagor and hence, he was entitled to the moiety of the estate, had entered into an oral agreement the plaintiffs adoptire mother and guardian for the redemption of his share only and pursuance of the agreement he had paid her a moiety of the mortgage amount and redeemed the land in question falling into his share. It was held by the Full Bench of the Appellate Court that he was not precluded by the proviso (4) of section 92 of the Evidence Act from proving his oral agreement. This judgment cited by the learned counsel for the petitioners in fact supports the case of the respondents that they were not precluded from proving their oral receipt Exh.P.W.3/A. The other judgment cited by the learned counsel for the petitioners reported as Maung Ba Kyaw and another v. Nanigram Jaganath AIR 1934 Rang. 316 is also not applicable to the case in hand. In this case a suit was brought in the Small Cause Court of Rangoon for the recovery of two months interest due on a registered mortgage deed for a principal sum of Rs,50,000. The defence of the defendants-applicants was that they had made a valid tender of the whole amount remaining due on the mortgage and, therefore, under the provisions of section 84 of the Transfer of Property Act, the interest had ceased. It was held that the rate of interest, the time and the mode of repayment of the principal sum are material and essential part of deed of mortgage. No alteration in these terms as contained in the registered deed can be validly made except by a registered document. Therefore, the oral evidence regarding a verbal agreement whereby the time of .Repayment is extended and the mode of repayment is changed, ought to be excluded. In the case in hand, there is no stipulation 'in the two deeds Exh.P.W.1/1 and Exh.P.W.1/2 to the effect that a sum of Rs,4,000, the remaining amount, cannot be paid before the expiry of period of ten years. The payment made through Exh.P.W.3/A was not in violation of the said agreement. As mentioned above, the receipt Exh.P.W.3/A did not require registration. Another question arises here is as to whether a document which required registration but was not registered is admissible in evidence or not. The answer to this question is in affirmative. If a document which requires registration but is not registered, it was admissible in evidence as is held in Muhammad Akram v.
Syed Imrao Alil Shah 1988 CLC 2228.
19. Similarly, in Kalu and another v. Ghulam Siddiq and 4 others PLD 1991 Pesh. 111 it was held that document though unregistered could be used in evidence for collateral purposes. Since the receipt ,Exh.P.W.3/A had been placed on record without any objection from the petitioners' side and the same did not require any registration and the same did not vary or contradict the terms of the two deeds Exh.P.W.1/1 and Exh.P.W.1/2, the same being admissible in evidence, were rightly taken into consideration by the Courts below.
20., There is concurrent finding of fact by the Courts below of competent jurisdiction. I have not been able to find out any jurisdictional error or defect or misreading or non-reading of evidence or any material irregularity warranting interference in revisional jurisdiction by this Court. Drawing wisdom from Muhammad Muzaffar Khan v. Muhammad Yousuf Khan PLD 1959 SC (Pak.) 9, Feroz v.
Sher and others PLD 1985 SC 254, Taus Khan v. Muhammad Shuaib 2002 MLD 651, Muhammad Amin v. Karam Das AIR 1924 Lah. 203, Sukh 'Dew v. Parsi AIR 1940 Lah. 475 and Saadullah v. Ibrahim AIR 1952 Lah.
518. I hereby dismiss the revision petition with no order as to costs.