CH. IJAZ AHMAD, J.---The brief facts out of which the present. Appeal arises are that Shop No. 1 measuring 3 Marlas, 90-3/4 sq.Ft. Was allotted to Abdul Rashid Khan respondent No. 1 by the Faisalabad Development Authority on 19-4-1983. The shop in question is situated in Market No.3, Dijkot Road, Chak No.212/R.B., Faisalabad. Respondent No. 1 paid all the dues of the F.D.A. The shop in question was transferred by the F.D.A. In favour of the allottee Abdul Rashid who executed agreement to sell on 29-2-1988 in favour of one Muhammad Hanif son of Shahab-ud-Din for consideration of Rs.2,80,000. Abdul Rashid allottee had received Rs.60,000 from said Muhammad Hanif. Agreement to sell was attested by Tahir Rashid D.W.3 and Mahar Muhammad Bashir P.W.8.
The receipt was also attested by the aforesaid witnesses. The payment was made through Alauddin Tasin father of the appellants/plaintiffs to Abdul Rashid respondent No.1/original allottee.
The agreement to sell also contained condition that vendee Muhammad Hanif had the option to get the property be transferred either in his own name or in the name of person of his own choice.
Another agreement dated 19-4-1988 was also executed by the original allottee qua the shop in question to Messrs Muhammad Jamil and the present appellants/plaintiffs with the consent of aforesaid Muhammad Hanif for consideration of Rs.2,20,000 on the basis of the aforesaid clause of the agreement. The agreement was attested by Abdul Hameed P.W.7 and Mahar Muhammad Bashir P.W.8. The contents of the agreement dated 19-4-1988 reveal payment of Rs.60,000 as earnest money to the original allottee Abdul Rashid was adjusted against the sale price. Therefore, the balance amount of Rs.2,20,000 was also paid to Abdul Rashid the original allottee through Alauddin Tasin father of the appellants/plaintiffs. The original allottee had also executed general power of attorney in favour of Muhammad Hanif original vendee which reveals that aforesaid Muhammad Hanif was authorised to complete the formalities qua the transfer of the shop in question on the basis of aforesaid agreement. The title documents were also handed over by the original allottee to the appellants through their father after receiving the balance amount Rs.2,20,000. Aforesaid Muhammad Jamil had also executed agreement to sell in favour of the appellants/plaintiffs qua his share in the shop. The contents of the agreement to sell reveal that he hid surrendered his interest in the property in question in favour of the appellants/plaintiff. The agreement to sell was attested, by Akhlaq Ahmad and Alauddin P.W.9. Receipt was also attested by them. The land in question was riot transferred in favour of the appellants/plaintiffs in terms of the aforesaid agreements till 2-6-1988. Muhammad Hanif original vendee died on 2-6-1988. After the death of original vendee appellants/plaintiffs had requested respondent No.1/defendant No.1 to execute another general power of attorney in favour of the appellants/plaintiffs' father so that the shop in question be transferred in their names. Respondent No.1 requested the appellants/ plaintiffs that all the papers be given back to him so that he would execute the requisite power of attorney in their favour. Subsequently, respondent No.1 refused to transfer the shop in question in the name of the plaintiffs/appellants or to execute general power of attorney in their favour. Respondent No.1 executed general power of attorney in favour of Muhammad Siddiq respondent No.2/defendant No.2 on 14-12-1988. An agreement to sell was also executed by respondent No.1 in favour of Kalsoom Akhtar respondent No.3 who is were of respondent No.2. The respondents had taken possession of the shop in question by force from the appellants. The appellants/plaintiffs being aggrieved filed suit for possession, declaration and specific performance before the Civil Judge 1st Class, Faisalabad on 23-10-1989 on the ground that power of attorney executed by respondent No- 1 in favour of respondent No.2 on 14-12-1988 and agreement to sell executed by respondent No.1 in favour of respondent No.3 is illegal, mala fide, fraudulent, collusive qua respondent No.1 and respondents Nos.2 and 3 and - is without jurisdiction. Hence, inoperative against the rights of the plaintiffs/appellants over the shop in question and for the issuance of perpetual injunction restraining the respondents/defendants from interfering into the proprietary rights of the plaintiffs/appellants over the shop in question, further restraining the respondents from operating the agreement dated 14-12-1988; further from alienating the rights to some other person detrimental to the rights and interest of the appellants/plaintiffs with consequential relief that the appellants/ plaintiffs are entitled to a decree for specific performance of agreement dated 29-2- 1988, 19-4-1988 and 5-7-1988. The respondents/ defendants filed written statements and controverted the allegations levelled in the plaint. Out of the pleadings of the patties the trial Court framed the following issues:-- (1)Is this suit not in proper legal form? OPD (2)Whether the alleged sale is void, the plaintiff being pari delicto? OPD (3)Have the plaintiffs no cause of action and locus standi to file this suit? OPD (4)Is this suit not proceedable? OPD (5)Have the plaintiffs not come with clean hands so they are not entitled for discretionary relief?
OPD (6)Is this suit collusive in between the plaintiffs and defendant No.4? OPD (7)Is this suit frivolous and vexatious? If so, its effect? OPD (8)Whether the defendant No. 1 executed sale agreement dated 29-2-1988, 19-4-1988 and 5-7- 1988 firstly in favour of Muhammad Hanif and thereafter in favour of plaintiffs and defendant No.4 and got the total sale price? OPP (9)Whether the defendant No. 1 handed over the possession and original documents executed by him with F.D.A. And executed a registered general power of attorney dated 20-4-1989 in favour of Muhammad Hanif to complete the relevant formalities of the transfer of the suit site in the name of the plaintiffs, with F.D.A.?OPP (10)Whether the defendant No.4 sold and surrendered his right in favour of plaintiffs vide agreement dated 5-7-1988 and since then the plaintiff had been in possession of suit property?
OPP (11)Whether defendants Nos. 1 and 7 got the original documents except the possession slip, after the death of Muhammad Hanif, for the appointment of the father of the plaintiffs as general attorney? OPP (12)Whether having knowledge that plaintiffs were bona fide purchasers with consideration of suit site, the defendant No. 1 executed general power of attorney in favour of defendant No.2 and through him sale agreement in favour of defendant No.3; hence these are illegal, fraudulent, collusive, without jurisdiction and inoperative qua the rights of plaintiffs? OPP (13)Whether during the pendency of suit for declaration filed by the plaintiffs the defendants Nos. 1 to 3 took the possession of suit site? OPP (14)If above issues are proved whether the plaintiffs are entitled for declaration sought for and specific performance of agreement dated 29-2-1988, 19-4-1988 and 5-7-1988, if so, on what terms?
OPP (15)Relief.
2. The learned trial Court dismissed the suit vide judgment and decree dated 2-2-1993. Hence the present appeal.
3. Learned counsel for the appellants submits that trial Court dismissed the suit without applying its, independent mind by misreading and non-reading of evidence on record. He further submits that appellants are bona fide purchasers of the shop in question but this fact was not considered by the learned trial Court in its true perspective. He further submits that finding of trial Court on Issues Nos.8 and 14 are contrary to law and facts. He further submits that trial Court has erred in law to give finding against the appellant on Issue No.8 that the appellants failed is produce two attesting witnesses. Both the attesting witnesses appeared before the trial Court. The appellants produced Mahar Muhammad Bashir one of the attesting witnesses as P.W.8 whereas another attesting witness was produced by the respondents as D.W.3. Therefore, requirement of Article 17 was fulfilled. The learned trial Court has erred in law to non-suit the appellants on this provision of law. He further submits that respondent admitted the execution of agreement to sell dated 29-2- 1988, therefore, provisions of Articles 17 and 79 of Qanun-e---Shahadat Order, 1984 are not attracted. He further urges that appellant produced the writer/scribe of the document, therefore; requirement of Articles 17 and 79 are fulfilled. In support of his contention he relied upon the following judgments:--
(1) Muhammad Zafaryab and 2 others v. Malik Muhammad Iqbal and another 2000 YLR 1468, (2)
Suleman Ali v. Maqsood Hussain through Legal Heirs and 2 others 2000 YLR 1983, (3) Zafar Ullah Khan v. Mst. Hakim Bibi and another 2000 YLR 2789, (4) Mst. Fatima Bibi v. Mst. Nasim Akhtar and others 2000 YLR 2953 and (5) Rehmatullah v. Fazal Baqi and another 1998 SCMR 760.
He further urges that agreement to sell does not require attestation. In support of his contention he relied upon the following judgments:--
(1) Manzoor Hussain Khan v. Mst. Asia Begum and 21 others 1990 CLC 1014 and (2) Mst. Nazar Rauf and 3 others v. Dr. Riaz Ahmad and another PLD 1988 Lahore 390.
He further submits that Qanun-e-Shahadat Order, 1984 is a complete code in itself and documents could be proved even otherwise than production of attesting witnesses, under the provisions of Qanun-e-Shahadat Order, 1984. In support of his contention he relied upon the following judgment: Sultan Ali v. Mst. Khadija Mai 1995 CLC 1441.
5. The learned counsel for the respondents submits that provisions of Qanun-e-Shahadat Order, 1984 is applicable, agreement to sell is to be proved by the appellants by producing two attesting witnesses. He further submits that one attesting witness Tahir Rashid appeared as D.W.3 and D.W.7 who denied his signatures on the agreement to sell. He further urges that trial Court has given finding of fact against the appellant after proper appreciation of evidence. He summed up his arguments that the learned counsel for the appellant failed to point out any material irregularity or illegality committed by the trial Court.
6. We have considered the contention of the learned counsel for the parties and perused the record.
7. It is better and appropriate to reproduce the finding of the trial Court on Issue No.8 to resolve the controversy between the parties:-- Issues No.8.---It is admitted that the impugned agreement dated 29-2-1988 was executed in favour of Mr. Muhammad Haneef, but Mr. Muhammad Haneef is not a party to the suit. For specific performance of the impugned agreement dated 29-2-1988 the cause of action was for Mr. Muhammad Haneef and he did not file any suit. The agreement dated 29-2-1988 gives no cause of action to the plaintiff.
(12)Exh. P.2 is an agreement dated 19-4-1988. It is executed in favour of the plaintiffs and the defendant No.4. It is based on Exh.P.1. The plaintiffs failed to prove the execution of Exh.P.1 as only one marginal witness was produced. It is provided in Article No.17 of Qanun-e-Shahadat Order, 1984 that any matter pertaining to financial or future obligation, if reduced to writing the instrument shall be attested by two men or one man and two women. It is provided in Article No.79 of Qanuh- e-Shahadat Order, 1984 if an instrument 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. Mr. Tahir Rasheed has not been declared as hostile witness. He has not been called through Court as plaintiffs' witness. Mr. Tahir Rasheed and Mr. Muhammad Bashir are admittedly alive and they are capable of giving evidence. But two marginal witnesses are not produced by the plaintiffs. The execution of Exh.P.1 is not proved as required under Qanun-e- Shahadat Order, 1984. Mr. Tahir Rasheed appeared as D.W.3 and declared that he never signed the Exh.P.1. Its signatures were never sent to the Handwriting Expert. The plaintiffs never made any such request that signatures of Mr. Tahir Rasheed be sent to the Handwriting Expert for his opinion.
Through verbal evidence it is not proved that Mr. Tahir Rasheed signed Exh.P.1. It was never requested by the plaintiffs that signatures of Mr. Tahir Rasheed be obtained for comparison by the Court. If the best available evidence is withheld according to 1990 MLD 276 presumption would be held that it might be going against the party who withheld that. Mr. Muhammad Bashir P.W.8 is an illiterate person who cannot be the best witness for contents of Exh.P.1 and Exh.P.2. It has become a common practice that counsel for the concerned party lays his fingers on the thumb-impressions and ask the witness that if the thumb--impressions under his fingers was his thumb-impression and the witness is apt to reply that was his thumb--impression. If the thumb-impression are mixed with some other thumb--impression the witness certainly cannot recognize his thumb-impression.
The evidence of such illiterate person cannot be relied upon. Mr. Tahir Rasheed declared to have not signed Exh.P.1 as marginal witness. He declared to have not signed the Exh.P.1/1. Execution of Exh.P.2 depends upon Exh.P.1 and execution of Exh.P.1 is not proved beyond any shadow of doubt.
Moreover, if an agreement Exh.P.1 was executed with Mr. Muhammad Haneef there is no rhyme or reason for execution of agreement to sell for the same property with the plaintiffs and defendant No.4 vide Exh.P.2. The vendor had no interest left in the suit property after execution of Exh.P.1. If it was sold vide Exh. P. 1 it was Mr. Muhammad Haneef who could have sold that to the plaintiffs or the defendant No.4. The plaintiffs themselves admitted that on 29-2-1988 the suit-land was alienated vide an agreement to sell Exh.P.1, that how they could say that the defendant No. 1 alienated the suit property to the plaintiffs on 19-4-1988. Only Mr. Muhammad Haneef could sell the gaid property.
Exh.P.2 does not bear the thumb-impressions or signatures of Mr. Muhammad Haneef. After execution of Exh.P.1 and Exh.P.2 any title is not supported to the plaintiffs or the defendant No.4. Mr. Muhammad Haneef has not been made a party to the suit. First of all execution of agreement dated 19-4-1988 is not proved beyond any shadow of doubt. Just for the sake of arguments even if it is deemed to have been executed even then it does not create any title in favour of the plaintiffs or the defendant No.4, as Mr. Muhammad Haneef never executed it and after execution of Exh.P.1 so-called vendor had no justification to execute Exh.P.2.
(13)The agreement dated 5-7-1988 Exh.P.9 is executed by the defendant No.4 in favour of the plaintiffs. Mr. Muhammad Jamil could not transfer any better title to the plaintiffs. Mr. Muhammad Jamil was not owner of the suit property on 5-7-1988' and not even now when the impugned agreement Exh.P.1 is alleged to have been executed. Mr. Muhammad Jamil was not owner of the suit property and he could not execute the sale-deed in favour of the plaintiffs. Moreover, the marginal witness Mr. Akhlaq Ahmed is not produced in the Court and in the absence of two marginal witnesses it cannot be said that the agreement dated 5-7-1988 is proved to have been executed. The plaintiffs failed to prove the execution of Exh.P.9, the agreement dated 5-7-1988 and just for the sake of arguments if it is presumed that it was duly executed, even then it conferred no title to the plaintiffs as Mr. Muhammad Jamil himself had no title for the suit property. Exh.P.9 was never executed by owner of the suit property.
(14)Exh.P.1 does not confer any title to the plaintiffs and defendant No.4. After execution of Exh. P.1, Exh. P.2 could not be executed by the defendant No. 1. Exh.P.9 the impugned agreement dated 5-7- 1988 is not executed by the original owner. The agreements do not confer any title to the plaintiff and issue is decided against the plaintiffs."
8. The aforesaid finding of the trial Court reveals that the trial Court has decided the case on surmises, conjectures and assumptions without correctly appreciating the evidence and applying his independent mind. It appears that the trial Court did not give the finding after appraisal of evidence and record in proper perspective. It is settled' principle of law that it is the duty and obligation of the trial Court to decide the controversy between the parties after applying its independent mind. In arriving to this conclusion we are fortified with the law laid down by the Honourable Supreme Court of Pakistan Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173. It is pertinent to mention here that the superior Courts have prescribed modes of proving signature or writing on a document:-- (1)by calling the person who signed or wrote the document, 1925 Lahore 299 Sarup Singh case; (2)by calling the person in whose presence the document was signed or written 1959 Indian Cases 188 Dhar & Co. Case; (3)by calling a Handwriting Expert AIR 1926 Kalkata 139 Khijir Uddin case; (4)by calling a person acquainted with the handwriting of the person by whom the document is supported to be signed or written AIR 1925 Lahore 299 Sarupa Singh case; (5)by comparing in Court the disputed signature or writing with some admitted signature or writing; (6)by proof of an admission by the person who is alleged to sign or written the document that he signed or wrote it, Karali v. Porsbad Dutta's case AIR 1928 Kalkata 498; (7)by the statement of professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person AIR 1922 Nagpur 227 Lahni's case; (8)the signature is proved to have been made if it is shown to have been made at the request of a person by some other person i.e. By the scribe who signed on behalf of the executant AIR 1931 Allahabad 101 Ram Charan's case, and (9)by other circumstantial evidence AIR 1976 Indian Cases 315 D.1 Chand case.
9. It is pertinent to mention here that Article 84 of Qanun-e-Shahadat Order, 1984, is an enabling provision leaving the discretion of the Court to satisfy itself as to the proof of the handwriting or the signature in case any dispute has been raised as to the genuineness. One of the mode for proving such a handwriting or signature is by reference thereto a Handwriting Expert for comparison, however, the Court is also empowered to compare the disputed handwriting or signature with the admitted signature and then arrive at its own findings as per principle laid down by the Honourable Supreme Court of Pakistan in Ali Ahmad alias Ahmad Sai case PLD 1962 SC 102. It is also settled principle of law that when the parties have not brought forward any expert witness to give opinion about the genuineness of the signature in question, the learned trial Court has to form its own opinion by comparing disputed signature with the admitted signatures. Article 84 of the Qanun-e- Shahadat Order, 1984 reveals that the signature on a document can be proved by the admission of the executant or from the oral evidence of the witnesses before whom it has been signed. It can also be proved by referring the admitted and disputed signatures of the to Handwriting Expert or -- comparison by the Court or by other circumstantial evidence.
10. In the present case D.W.3/D.W.7 Tahir Rashid had allegedly signed the agreement to sell but he denied the same. In this view of the matter it was the duty of the trial Court either to compare the signatures of Tahir Rashid attesting witness D.W.3/D.W.7 himself or could have sent the same for comparison to the Handwriting Expert. The trial Court had decided the case as mentioned above on surmises and conjectures without applying his independent mind and without appraisal of the evidence on record in true perspective and also decided the case in violation of the mandatory provisions of Articles 78 and 84 of the Qanun-e-Shahadat Order, 1984 and the law laid down by the superior Courts.
11. In view of what has been discussed above the appeal is accepted, the impugned judgment and decree is set aside and the case is remanded to the trial Court to decide afresh after obtaining a report of the expert qua the signatures of Tahir Rashid D.W.3/D.W.7 and thereafter decide the controversy between the parties after proper appreciation of evidence afresh. Parties are directed to appear before the trial Court on 3-9-2002. Trial Court is directed to decide the case as expeditiously as possible. The learned counsel for the parties are directed to cooperate with the trial Court so that the matter may be concluded as early as possible.
No order as to costs.
H.B.T./Z-143/L