Law: Qanun-e-Shahadat Order, 1984

Section:

TAG LINE:

Specific Performance – Agreement to Sell – Proof Under Article 79 QSO – Scribe Not Mandatory – Thumb Impression Comparison Under Article 84 QSO – Adverse Inference for Withdrawing From Expert Evidence – Misreading of Evidence by First Appellate Court – Duty to Reappraise Evidence – Case Remanded.

1. Background of the Case

• Suit Date: 23.05.2005
• Relief Sought: Specific performance of agreement to sell dated 17.10.2003 regarding a 5-marla house (suit property).
• Sale Consideration: Rs. 400,000/-
• Earnest Money: Rs. 150,000/- allegedly paid by the plaintiff (revision-petitioner).

Trial Court Proceedings

• Suit was conditionally decreed on 30.11.2011.

Appellate Court Proceedings

• Appeal (Civil Appeal No. 114/07-09-2016) was accepted, and the suit was dismissed vide judgment dated 30.11.2016.
• The appellate court mainly relied on alleged contradictions in plaintiff’s evidence and failure to produce the scribe and stamp vendor.

Revision Before High Court

• Plaintiff challenged the appellate judgment.

2. Core Legal Issues

• Whether the non-production of scribe and stamp vendor is fatal for proving the agreement under Article 79 QSO.
• Whether the Appellate Court failed to properly appreciate evidence, including defense evidence.
• Whether negative inference should be drawn when the defendant applied for thumb-impression comparison but later failed to deposit fee.
• Whether expert evidence under Article 84 QSO should have been secured.
• Whether first appellate court performed its mandatory duty as a court of fact.

3. Court’s Analysis

A. Misreading and Non-Reading by Appellate Court

• The appellate court evaluated only plaintiff’s evidence and ignored:
• Defendant’s stance that part of the suit property was given on rent, not sold.
• Defendant’s contradictory conduct regarding thumb impression comparison.

B. Proof of Agreement to Sell – Article 79 QSO

• Article 79, Qanun-e-Shahadat Order, 1984
  Requires that a document required by law to be attested must be proved by at least two attesting witnesses, if alive and capable of being produced.

The High Court held:

• Non-production of scribe is not automatically fatal if attesting witnesses have confirmed the document.

Case Law Relied Upon:

• Sheikh Muhammad Muneer v. Feezan (PLD 2021 SC 538)
• Abdul Khaliq v. Muhammad Younas (2019 MLD 824)
• Muhammad Tufail v. Ghulam Hussain (2008 YLR 921)
• Farid Bakhsh v. Jind Wadda (2015 SCMR 1044)
• Farzand Ali v. Khuda Bakhsh (PLD 2015 SC 187)

Principle:
- A scribe is not a substitute for an attesting witness. Attesting witnesses sign with a specific state of mind giving them evidentiary primacy.