ALI AHMED Versus ZULFIQAR ALI
SULTAN TANVIR AHMAD, J.--- The revision-petitioner instituted suit dated 23.05.2005 (the 'suit' ) for specific performance of agreement to sell dated 17.10.2003 with the averments that the respondent agreed to sell a house measuring 5-marlas, as further detailed in the suit (the 'suit property' ) against consideration of Rs. 400,000/- and he paid Rs. 150,000/- as earnest money.
2. Learned trial Court gave issue-wise findings and conditionally decreed the suit of the revision-petitioner vide judgment and decree dated 30.11.2011. The said judgment and decree was challenged in Civil Appeal No. 114/07-09-2016, which was accepted vide judgment and decree dated 30.11.2016 by the learned Appellate Court.
3. Thorough examination of judgment of the learned Appellate Court reveals that learned Judge has opted to rest the judgment by only discussing the evidence led by the revision-petitioner and contradictions contained therein. Specific stance / defence of giving a part of the suit property on rent to the revision-petitioner was set-up. It is settled that when contesting party take up a defence and the parties have produced the evidence, the Court is to evaluate the evidence, in civil cases, on the touchstone of preponderance of evidence 1 . The learned Appellate Court has gathered that failure to produce stamp vendor and scribe is crucial for the case, in view of the fact that these witnesses were available. A document is to be proved in accordance with Article 79 of Qanun-e-Shahadat, 1984 ( 'QSO' ) and omission to produce scribe is not always fatal in such suits, when the contents of documents are confirmed by the attesting witnesses, as already settled in Sheikh Muhammad Muneer 2 , Abdul Khaliq 3 and Muhammad Tufail 4 . Attesting witnesses do sign the document(s) in the given capacity and with particular state of mind 5 . The parties, can examine scribe and stamp vendor to corroborate. Scribe, however, in agreement to sell is not substitute of attesting witness 6 .
4. There is yet another aspect of the case. The respondent himself gave application for comparison of thumb impression. This application was accepted but he failed to deposit the requisite fee. The learned Appellate Court concluded that no negative inference is warranted, holding that it is just supportive evidence. No denial that such evidence is just supportive but why to shy away from the same. Article 84(1) of the QSO permits comparison of signatures, writing or seal in order to ascertain whether a signature, writing or seal is that of the one by whom it purports to have been written or made any signature writing or seal. Sub-Article (2) of Article 84 of the QSO reads that the Court may direct any person present in the Court to write any word or figure for the purpose of enabling the Court to compare the words or figure so written with any word or figure alleged to have been written by such person. QSO confer powers on the Court to get signatures etc. compared from any expert and for that purpose it can issue a direction to any person. Fine can be imposed if the person so summoned, without lawful excuse, fails to comply with the direction 7 .The Court has power to compel the attendance of witness to give evidence 8 . In Mian Sohail Ahmed 9 , the Honourable Supreme Court of Pakistan has already raised questions regarding shutting out eyes to scientific research and development, which has already been recognized and acknowledged by the courts in various other jurisdictions. In Muhammad Rafi 1 0 this Court observed that although the report of the Finger Print Bureau is not conclusive evidence, yet as held by the Supreme Court in Hamid Qayyum and 2 others v. Muhammad Azeem through legal heirs and another (PLD 1995 SC 381) , the opinion of an Expert is one of the modes of producing evidence, which after being properly proved, can be used as corroborative piece of evidence.
5. The learned Appellate Court has not discussed the evidence of the respondent and stance taken by him. The respondent requested for comparison and then retracted from it. First appeal is continuation of the suit and in the present circumstances it was duty of the first Appellate Court to evaluate the entire evidence on the balance and then to see where it tilts. In Gul Rehman 1 1 it is observed that if the learned Appellate Court does not examine the facts and the evidence for itself and does not even mention the points which the case raises, it will be certainly failing in its duty. I have found contradictions in the evidence of both sides. It is suitable that the learned Appellate Court should first secure the expert evidence and then evaluate the entire evidence available before the learned Court, on the touchstone of preponderance of evidence.
6. In view of the above, the case is remanded to the learned Appellate Court with the direction to decide it afresh. The case shall be deemed to be fixed before the learned Appellate Court on 27.10.2025. The matter being old needs an early attention. The parties or their authorized representatives to appear on the date fixed. Office to inform.
7. Allowed in above terms.
MQ/A-89/L Revision allowed.
1 Khalid Hussain and others v. Nazir Ahmad and others (2021 SCMR 1986) .
2 Sheikh Muhammad Muneer v. Mst. Feezan (PLD 2021 Supreme Court 538) .
3 Abdul Khaliq v. Muhammad Younas and others (2019 MLD 824) .
4 Muhammad Tufail v. Ghulam Hussain and others (2008 YLR 921) .
5 Farid Bakhsh v. Jind Wadda and others (2015 SCMR 1044) .
6. Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 Supreme Court 187) . also see Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others (PLD 2011 Supreme Court 241) .
7 See Rule 12 of Order XVI of the Code of Civil Procedure-1908.
8 Ikram Ullah v. Mst. Farkhanda Habib and 3 others (2012 CLC 569).
Also see Ali Ahmad v. The Government of West Pakistan (PLD 1960 (W.P) Lahore 90).
9 Mian Sohail Ahmed and others v. The State and others (2019 SCMR 956) .
10 Muhammad Rafi v. Mst. Jamila Begum and 09 others (2022 YLR 1752) .
11 Gul Rehman v. Gul Nawaz Khan (2009 SCMR 589) .