Stereo. H C J Form HCJDA 38.

Judgment Sheet
IN THELAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT.

Civil Revision No. 1548/2009.

, Syed Arif Hussain Shah(deceased) through LRs V Sakina Bibi., etc .
JUDGMENT

Date of Heari Date of hearing 26.11.2020

Petitioners by: Mr. Ghulam Farid Sanotra, Advocate for petitioners.

Mian Qamar-ul-Islam & Anwar Hussain Janjua,
Advocates for petitioner No.1(b).
Respondents by: Mr. Zia Ullah Khan Niazi, Advocate for respondents
No.1 to 6.
M/s. Ihsan Ahmad Bhindar, Liaqat Ali Malik & Sohail
Zafar Sipra, Advocates for respondent No.8.

Ch. Muhammad Masood Jahangir, J. The facts giving rise to

Civil Revision in hand are that respondents No.1 to 6 instituted suit for

declaration and possession with regard to area in dispute asserting that they

had never appointed Sh. Riaz Ahmad, respondent No.7 as their general

attorney, rather he maneuvered forged, fictitious as well as fabricated general

power of attorney (GPA) dated 24.10.1989 (Exh. D-1) and on its basis

alienated the said property vide sale deed dated 20.01.1990 (Exh. P-2) to Syed

Arif Hussain Shah (now deceased), predecessor of present petitioners.

The alleged attorney/respondent No.7 did not file his written statement,

rather only the ultimate beneficiary/predecessor of petitioners contested the

suit by submitting his written statement, pleading that Sh. Riaz Ahmad was

the general attorney of the plaintiffs, who as per said authority after receiving

consideration executed sale deed in his favour. Having consulted his written

statement, it is observed that petitioner never asserted that prior to purchase

of property, he ever made some efforts to check the authenticity of GPA from

concerned quarters, which registered it or even consulted the principals-

plaintiffs. It was wondrous/prodigious that the beneficiary/petitioner did

 2
C.R. No.1548/2009
not provide the detail through his pleadings qua original transaction of sale to

the effect that when or before whom and against what consideration, the suit

area was purchased. Out of dissection of the divergent pleadings of the

parties, the basic question arose: whether the plaintiffs/respondents No.1 to 6

had ever appointed Sh. Riaz Ahmad, as their general attorney or the latter

had an honest/genuine attorney deed (Exh.D1) in his favour to deal with the

suit property vested to the principal. The learned Trial Court while sensing

the real/pivotal area of disputed facts emanating from plaint and written

statement materialized certain issues, but the basic was issue No.6, which

alone for brevity sake is reproduced below:-

“6. Whether the impugned general power of attorney dated 24.10.1989 is

the result of fraud, misrepresentation, fabrication, forgery, and the
impugned sale as a consequence thereof is illegal, void ineffective
inoperative against the rights of the plaintiffs? OPP.“

The Court of first instance having appreciated the evidence of the respective

parties, while answering this very important issue in the negative dismissed

the suit on 18.05.1995, but it could not sustain when learned Additional

District Judge while allowing the appeal decreed the suit vide impugned

judgment dated 01.07.2009 in favour of plaintiffs/respondents No.1 to 6. This

caused injury to the petitioner/beneficiary, who preferred the petition in

hand.

2. M/s. Ghulam Farid Sanotra, Qamar-ul-Islam & Anwar Hussain

Janjua, Advocates, learned counsel for petitioners inaugurally argued that

evidence available on record was not consulted by the learned Appellate

Court below in its true perspective, rather misconstrued/ misinterpreted to

reverse the exhaustive findings of the learned Trial Court on vital issues, that

in rebuttal to additional evidence recorded before Appellate Court,

verification reports (Exh.D6&7) duly tendered, but those were purposely

disregarded to render impugned decree. It was further asserted that a valid

 3
C.R. No.1548/2009
agency was created among plaintiffs & Sh. Riaz Ahmad, which was never

terminated/rescinded, therefore, the agent in exercise of his powers-

authority conferred upon him vide registered instrument legally transferred

the suit property through attestation of another document/sale deed and that

the transaction matured when consideration made good and possession

changed hand. The learned counsel for the petitioners/beneficiary next

contended that by bringing on record copies of some other attorney deed, it

stood proved beyond doubt that Sh. Riaz Ahmad being reliable person of the

plaintiffs had been appointed by them as their agent even during the

pendency of suit, but the learned Additional District Judge committed patent

illegality while omitting to take notice of those available relevant and

important documents. It was further emphasized that Exh. D-1 & Exh. P-2

(the questioned attorney deed as well as sale instrument) being registered

documents, the presumption of regularity and correctness was attached

thereto, but for mere oral bald assertion those were unwarrantably blotted

out. M/s Sanotra & Qamar further pleaded that the petitioner examined Sh.

Riaz Ahmad/the alleged attorney (DW-1) who on oath affirmed his

authorization, therefore onus of issue No.6 so shifted to him being

beneficiary, was successfully discharged, but while not giving importance to

his un-rebutted statement, the lower Appellate Court committed material

irregularity. They in fag end of their arguments foregrounded that learned

Additional District Judge did not render his independent findings on each

and every issue, rather passed an omnibus decision, further that in view of

recent judgments of the apex Court reported as ‘Sikandar Hayat and another

versus Sughran Bibi and 6 others’ (2020 SCMR 214) & ‘Sakhi Jan and others versus

Shah Nawaz and another’ (2020 SCMR 832) without impleadment of Sub-

Registrar, Tehsildar & Patwari, who registered the GPA, entered and attested
 4
C.R. No.1548/2009
the incorporating mutation, suit could not proceed, thus prayed for remand

of the case.

3. In defence, Mr. Zia Ullah Khan Niazi, Advocate on behalf of

respondents No. 1 to 6/plaintiffs asserted that GPA was a disputed

document, which entailed future obligation as well as financial liability,

therefore, sine qua non for the beneficiary to have examined its marginal

witnesses in terms of Article 79 of Qanun-e-Shahadat Order, 1984, but neither

they nor any other signatory i.e. Stamp Vendor, Deed Writer or Sub-Registrar

were examined to prove its authenticity/genuineness, that original GPA was

also not brought in picture, as such the available direct, affirmative and best

evidence was deliberately withheld, therefore, hostile inference was rightly

drawn. It was next emphasized by Mr. Niazi that while proceeding with

Regular First Appeal, the learned Appellate Court, at its own, to arrive at a

just and fair conclusion summoned the original record of the disputed GPA

from the office of Sub-Registrar and examined the statement of Khalid Bashir,

Assistant to concerned Sub-Registrar, in additional evidence, who explicitly

deposed on oath that the disputed GPA was not registered in the office of

Sub-Registrar, thus undoubtedly proved that it was a fabricated, forged, fake

and backhanded document, which was prepared by practicing fraud just to

usurp the property of the plaintiffs. The learned counsel for the plaintiffs also

asserted that fraud vitiates most solemn proceedings and cannot be protected

or perpetuated for any cause. He finally while supporting the impugned

judgment prayed for the dismissal of petition in hand.

4. Arguments heard and record consulted in depth.

5. The real task for the parties involved herein was to prove the

genuineness or otherwise of the GPA (Exh.D1). No doubt, it was claimed to be

registered one, but due construction as well as attestation thereof was strongly

disputed by the alleged executants while asserting it to be fake and fabricated

 5
C.R. No.1548/2009
document. It is again trite rule that a document does not prove itself, rather

requires to be substantiated as per scheme of prevailing law by examining

himself and calling the scribe besides the witnesses before whom it was

reduced into writing or by evidence of persons acquainted with the

handwriting, signatures of the maker/signatories of the document, if they

were not available for any reason or by referring the questioned instrument to

an expert for having his opinion based upon comparison/analysis of disputed

writing, signatures/thumb impressions with the admitted one. It is again well

established position of law that proof of execution is not synonymous with

regard to prove contents thereof, but in addition to substantiate construction

of that document, the beneficiary is bound to lead primary, direct, affirmative

or secondary/circumstantial internal evidence as the case may be, to establish

the genuineness and its truthfulness as well. The impugned GPA was

encompassing financial liability or at least future obligation, thus could only

be proved as per requirement of Article 79 of the Order ibid. This view finds

support from the law, already declared by the apex Court in an exhaustive

manner through judgment reported as ‘Maqsood Ahmad and others versus

Salman Ali’ (PLD 2003 SC 31) by declaring as under:-

“Therefore, whenever a document is executed with an authority to the

Agent to deal with financial matters of the property on behalf of the
Principal and also making him responsible for future obligations
either to the Principal in respect of the affairs of his property or with a
third person with whom he is dealing on behalf of the former, the
document squarely falls within the categories of the instruments
which are required to be attested by two men or one man and two
women in terms of Article 17 (2)(a) of the Order and before a Court of
law contents of document are required to be proved as per the
methodology of Article 79 of the Order.”

The said conclusion in terms of Article 189 of the Constitution is binding upon

all subordinate Courts and no other exception could be taken thereto. In this

background, when available record consulted, it emerged that though Sh.

Sultan Ahmad & Muhammad Aslam purportedly signed Exh.D1 being

 6
C.R. No.1548/2009
marginal witnesses, but neither they nor the Typist, who drew it or even the

alleged Identifier as well as the Sub-Registrar, who attested it were

summoned/produced. In absence thereof, Exh.D1 could not be taken as

evidence, what to assume that its construction, execution or the fact qua

constitution of agency recorded therein proved.

6. The additional drastic aspect of the case was that the original GPA

was not brought on suit record. The contention of Mr. Sanotra, Advocate for

the petitioners that after having been utilized, the GPA became useless, which

might be destroyed or lost, was not well founded. Although, Sh. Riaz Ahmad,

the alleged agent (DW-1) appeared on behalf of petitioners, but did not utter

in line, what Mr. Sanotra explored. The moment evidence on behalf of

plaintiffs recorded that they had never ever executed questioned GPA

(Exh.D1), onus in negative stood discharged. In such situation, failure to

produce the original GPA gave rise to the presumption that had it been

exhibited, it would have gone against the version of petitioners/beneficiary. It

was matter of record that initially the suit in hand was dismissed vide

judgment of the learned Trial Court, which was assailed through Regular First

Appeal No.320/1995 and the Hon’ble Division Bench of this Court vide order

dated 27.05.2002 felt necessity for summoning of record from the office of

concerned Sub-Registrar, who purportedly attested the impugned GPA. The

statement of Assistant to Sub-Registrar office also recorded in additional

evidence, who through his statement recorded on 23.09.2002 while having

relevant record before him stated that GPA in dispute bearing registration

No.6345 dated 24.10.1989 was not registered in the office of Sub-Registrar XIII,

Karachi. The said Court witness withstood the test of cross-examination and

was found to be credible. Thereafter the Regular First Appeal could not be

culminated by this Court as it was remitted back to the learned District Court

concerned due to enhancement of its pecuniary jurisdiction. Anyhow, the fact

 7
C.R. No.1548/2009
remained that statement of said CW could not be rebutted and there left

nothing to conclude that it was an artificial, fabricated and fake document,

which was deceitfully cooked to deprive the rightful owners.

7. The next drawback was that the plaintiffs/alleged executants were

residents of Faisalabad City, whereas the subject land was located in Chiniot,

therefore, the GPA could normally be executed or registered in either of these

two places, but its creation at Karachi, if found to be correct, was sufficient to

doubt its veracity. From wherever angle the questioned document analyzed, it

was found to be engineered by practicing forgery and fraud. It is by now a

settled proposition of law that fraud vitiates all solemn proceedings. In

‘Muhammad Younas Khan v. Government of N.W.F.P’ (1993 SCMR 618) the apex

Court observed as follows:-

“There is no cavil with the proposition that fraud vitiates all solemn
acts and any instrument, deed, or judgment, or decree obtained
through fraud is a nullity in the eye of law and can be questioned at
any time so much so that they can be ignored altogether by any Court
of law before whom they are produced in any proceedings. Fraud is
defined in section 17 of the Contract Act as the suggestion, as a fact, of
that which is not true, by one who does not believe it to be true; that
active concealment of a fact by one having knowledge or belief of the
fact; a promise made without any intention of performing it; any other
act fitted to deceive; and any such act or omission as the law specially
declares to be fraudulent. It was observed by this Court in the case of
Abdul Wahid v. Mst. Zamurt (PLD 1967 SC 153) that a question of
fraud is never purely a question of law as it involves firstly a finding
with regard to fact, that is to say conduct on the part of the party
alleged to consider whether such proved conduct amounts in the
circumstances of the case of fraud .”

and further solicited by the same Court in cases reported as ‘Mst. Zulaikhan

Bibi through Lrs and others versus Mst. Roshan Jan and others’ (2011 SCMR 986)

and ‘Ghulam Farid and another versus Sher Rehman through Lrs’ (2016 SCMR

862).

8. As regards the claim of predecessor of petitioners that he is bona fide

purchaser for value, suffice it to say that Sh. Riaz Ahmad being holder of a
 8
C.R. No.1548/2009
forged & factious attorney deed had no authority to transfer the suit area in

favour of the petitioners, who merely on the basis of sale deed executed by

such agent in his favour cannot be declared rightful owner because neither the

fraudulent alienation can be protected nor perpetuated and was rightly

collapsed by the learned Appellate Court through the impugned decree as per

mandate of case law reported as ‘Ghulam Rasool and others versus Noor

Muhammad and others’ (2017 SCMR 81).

9. The argument of learned counsel for the petitioners that learned

Appellate Court should have returned independent findings on each & every

issue might have carried some weight, if the matter entailed dimensional

features, whereas in this case issue No.6 being of pivotal nature was to be

decided on one or the other way and decision on rest of the issues was

dependent on it. As such no exception can be taken in this behalf.

10. The emphasis of learned counsel for the petitioners that by bringing on

record copies of some other power of attorney deeds it fully established that

Sh. Riaz Ahmad was a person of confidence of the principal/plaintiff is not

well founded. No doubt, some Photostats were brought on record, but it was

not enough. It is well established by now that documents other than copies of

judicial record cannot be received in evidence without having proof of its

signatures and handwriting. There is no cavil that production of document

and proof of transaction referred therein are two different subjects and to me

the latter aspect is more important. See Khan Muhammad Yusuf Khan Khattak

vs. S.M . Yousaf and 2 others (PLD 1973 SC 160) and relevant extract thereof at

caption “o” & “v” is reproduced hereunder:-

“When I say that the document Exh.P.E. is unproved. I have in mind the
mandatory provisions of section 67 of the Evidence Act, which lay down
that “if a document is alleged to be signed or written wholly or in part by
any person, the signature or the handwriting of so much of the document
as is alleged to be in that person’s handwriting must be proved to be in
his hand-writing.” If the case of the respondent was that the appellant
 9
C.R. No.1548/2009
had signed the original of Exh.P.E. or the certificate appended to it, it
must have been proved that it was in the appellant’s handwriting, for
which no effort whatsoever was made. In the case of Bengal Friends &
Co. v. Gour Benode Saha & Co., this Court had expressed itself on this
point as follows:-

“Documents which are not copies of judicial record, should

not be received in evidence without proof of signatures and
handwriting of persons alleged to have signed or written
them.”
I am of the view that even if such documents are brought on record and
exhibited without objection, they remain on the record as “exhibits” and
faithful copies of the contents of the original but they cannot be treated as
evidence of the original having been signed and written by the persons
who purport to have written or signed them, unless the writing or the
signature of that person is proved in terms of the mandatory provisions
of section 67 of the Evidence Act.”

“As regards the contention that the document was not proved in
accordance with law, I find that there is merit in the submission that the
provisions of sections 67 and 47 of the Evidence Act were not complied
with, as there is no evidence on the record regarding the identity of the
handwriting and the signatures of the appellant as appearing on the
certificate appended at the end of Exh.P.E. “

Thus mere exhibition of said attorney deeds was not sufficient to draw

positive inference in favaour of the beneficiary regarding the authenticity of

the document questioned herein.

11. The next argument of learned counsel for the petitioners that in rebuttal

to additional evidence brought on record through statement of CW some

reports were tendered, which were not given due weight is also

misconceived for the counts, firstly that those were not proved as per

yardstick of scheme of law, and secondly that statement of CW was a direct

and affirmative evidence based on original record, which could not be

rebutted by bringing on record some unproved reports.

12. The emphasis of learned counsel for the petitioners that as per dicta

laid down in cases of Sikandar Hayat and Sakhi Jan (supra) that without

impleadment of Tehsildar, Patwari or the Attesting Officer, who allegedly

 10
C.R. No.1548/2009
while colluding, played vital role in sanction of mutation or instrument, suit

was not competent and liable to be dismissed on said score, suffice it to say

that each case is to be decided on its peculiar facts. The impleadment of such

official/officer would be essential, if ultimately it is observed that some

benefit was derived by said authority. For instances, the Attesting Officer by

his act alienated property of the other to his fiduciary for his own gain,

whereas under order 1 rule 9 of the Code, 1908 a suit for misjoinder or non-

joinder of some party cannot be defeated. In the case in hand, indeed, the

attesting/registering authority or other officials did not contribute in

constructing the subject GPA, rather it was a fake and artificial document,

hence the cited judgments with due respect are not applicable with all four

corners.

13. For the foregoing reasons, it is proved that ascendant of the

petitioners being in league with a forger usurped property of innocent persons

and had no case at all on merits. The plaintiffs must come forward to initiate

criminal proceedings against the delinquents, besides filing of suit for

recovery of damages, if so advised. The impugned judgment was perfectly

passed as per available evidence and law on the subject and this Civil Revision

being meritless is dismissed with costs of Rs.1,00,000/-.

(Ch. Muhammad Masood Jahangir)

Judge.

Approved for reporting.

Judge.
K. Mahmood