Muhammad Tariq Khan vs. Ameer Bahader Khan

IN THE PESHAWAR HIGH COURT, PESHAWAR

[JUDICIAL DEPARTMENT]

RFA No. 61-P/2024.

Muhammad Tariq Khan...................... Appellant Vs.

Ameer Bahader Khan ....................... Respondent Present: Mr. Mukhtiar Alam, Advocate for the appellant.

Mr. Muhammad Sabir Khan, advocate for the respondent.

Date of hearing: 04.05.2026

Through this appeal, the

appellant has challenged the judgment and decree of the learned Addl: District Judge, Mardan at Katlang dated 05.01.2024, whereby, the suit filed by the present respondent was decreed.

2.Precisely, the fact leading to the filing of this appeal are that the respondent namely Ameer Bahader filed the instant suit pleading therein that the parties entered into a sale transaction vide agreement dated 08.11.2021 in respect of an agriculture land measuring 108 kanal at Moza Pir Abad as against a sale consideration amount of rupees Eighty-One Lakhs (Rs.

81,00,000/-) which had paid by the respondent/plaintiff (S.B.) Hon’ble Mr.Justice Muhammad Ijaz Khan, J (Jamil)

to the appellant/defendant and it was promised by the defendant that the possession of the land would be delivered to him after 30 days of scribing of the deed and he will also transfer the same in the name of the respondents/plaintiff, however, after some time respondent/plaintiff got information that the suit property is not the ownership of the appellant. It is further pleaded that the respondent/plaintiff repeatedly approached the appellant/defendant for the transfer of the suit property as well as for its possession but the appellant/defendant resorted for dilly-dally therefore, respondent/plaintiff asked the appellant to return the paid sale consideration amount and in this regard, he agreed that he will return the same after sometime and in this regard a promissory note dated 10.12.2021 was scribed in presence of marginal witnesses. The appellant/defendant also scribed an affidavit in respect of said promissory note, however, later on, the plaintiff demanded the outstanding amount through the elders of the locality but appellant/defendant failed to return the amount, therefore, he filed the instant suit. Defendant was summoned, who submitted an application for leave to defend, which was accordingly allowed vide order 02.08.2022, thereafter, the appellant filed the written (S.B.) Hon’ble Mr.Justice Muhammad Ijaz Khan, J (Jamil)

statement and keeping in view divergent pleas of the parties, the learned Trial Court framed as many ten (10) issues and the parties were directed to produce their respective evidence, which they have accordingly led and ultimately, the said suit was decreed vide impugned judgment and decree dated 05.01.2024, which has now been challenged by the appellant/defendant before this Court through the instant appeal.

3.Argument of the learned counsel for the appellant as well as learned counsel for the respondent were heard in considerable detail and record perused with their able assistance.

4.Before dilating upon the merits of the case, the main objection of the appellant/defendant was that since the respondent/plaintiff has produced only one marginal witness of the pro-note, therefore, he has not proved the said pro-note as per the requirement of Article 17 (a)(i) read with Article 79 of The Qanun-e-Shahadat Order, 1984 however, as against this, the plea of the respondent/plaintiff was that since as per the mandate of law a pro-note is not required to be attested by two marginal witness, therefore, non-production of the second marginal witness of the pro-note is not fatal. In view of the above, now this Court would proceed to (S.B.) Hon’ble Mr.Justice Muhammad Ijaz Khan, J (Jamil)

decide the said preliminary objection at first instance that as to whether any suit which has been filed on the basis of a negotiable instrument/ pro-note, both the marginal witnesses are to be produced or not and as to whether non-production of second marginal witness would be fatal for the case of the plaintiff or not.

5.In order to comprehensively answer the aforesaid question, it would be relevant to reproduce the definition of a pro-note as given in section 4 of The Negotiable Instrument Act, 1881, the same being relevant is reproduced below:

“A "promissory note" is a instrument in writing (not being a bank-note or a currency-note) containing an unconditional undertaking, signed by the maker, to pay on demand or at a fixed or determinable future time a certain sum of money only to or to the order of, a certain person, or to the bearer of the instrument.”

The plain reading of the aforesaid definition would show that there are five (05) essential ingredients to term a document as a pro-note i.e.:

i. That the instrument must be in writing. ii. There must be an unconditional undertaking to pay.

iii. The maker should sign it.

iv. The sum should be the sum of money and certain.

(S.B.) Hon’ble Mr.Justice Muhammad Ijaz Khan, J (Jamil)

v. The payment should be to or to the order of a person, who is certain or to the bearer of the instrument.

And thus, if an instrument fulfills the aforesaid five conditions then the same has to be treated as a negotiable instrument/ promissory note. The said definition of a promissory note would further show that a promissory note is not required to be signed and attested by two marginal witnesses as against other kinds of documents, which are required to be attested as per the mandate of Clause (a) of Sub-Article (2) of Article 17 of The Qanun-e-Shahadat Order, 1984. It would also be relevant to highlight and clarify that as to whether Article 17 and Article 79 of The Qanun-e-Shahadat Order, 1984 would be applicable to a lis, which has been filed on the basis of a pro-note or not. Article 17 and 79 being relevant are reproduced below:

“17. Competence and number of witnesses.--(1) The competence of a person to testify, and the number of witnesses required in guy case shall determined in accordance with the injunctions of Islam as laid down in the Holy Qur'an an and Sunnah.

(2)Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law--

(a)in matters pertaining to financial or future obligations, if reduced to writing, the (S.B.) Hon’ble Mr.Justice Muhammad Ijaz Khan, J (Jamil)

instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and

(b)in all other mattes, the Court may accept, or act on, the testimony of one man or one woman, or such other evidence as the circumstances of the case may warrant.

79.Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses of 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 given evidence.”

The plain reading of the sub-clause (a) of the sub- Article (2) of Article 17 of The Qanun-e-Shahadat Order, 1984 would show that in matters pertaining to the financial or future obligation if reduced to writing, then such instrument shall be attested by two men or one man and two women whereas, the heading and opening sentence of Article 79 would show that for the proof of execution of a document, which is required by law to be attested then it shall not be used as an evidence until two attesting witnesses of the said document have been called for the purpose of proving its execution. The phrase “if a document is required by law to be attested” and “it shall not be used as an evidence unless two attesting witnesses are called for the purpose of proving (S.B.) Hon’ble Mr.Justice Muhammad Ijaz Khan, J (Jamil)

its execution” are of much significance. The said Article would apply only where the requirement of law is that a document is to be attested by two marginal witness then such document could not be used as an evidence, unless the two attesting witnesses are produced in the Court, however, as stated herein above, that it is not the requirement of law as per the definition of pro-note given in section 4 of The Negotiable Instrument Act, 1881 that a pro-note is to be signed and attested by two marginal witnesses, therefore, when a pro-note is not required by law to be attested by two marginal witnesses then, the principle as laid down in Article 17, (2)(a) read with Article 79 of The Qanun-e-Shahadat Order, 1984 could not be applied to a case where the suit has been filed on the basis of a pro-note and as such, it is held that in a pro-note case neither a pro-note is required by law to be attested by two marginal witnesses nor if it is even signed, then the production of its marginal witnesses or non-production of a single marginal witnesses would not affect the legal worth of such pro-note. The controversy that as to whether in pro-note cases marginal witness are required to be produced or not and as to whether production of a single marginal witness would be fatal for the plaintiff who has filed a suit on (S.B.) Hon’ble Mr.Justice Muhammad Ijaz Khan, J (Jamil)

the basis of a pro-note has come before the three members’ bench of the Supreme Court in the case of “Mehr Noor Muhammad Vs. Nazir Ahmad” reported as 2024 CLD 193, where para 4 and para 5 of the said judgment being relevant is reproduced below:

“4. So far as the question of admissibility is concerned, the first objection was that since two witnesses attested the promissory note and one of them was not produced in Court, in terms of Article 79 of the Qanun-e- Shahadat, 1984, it had to be excluded from evidence. This statement is not correct. It may be noted that as per Section 4 of the Negotiable Instruments Act, 1881, a promissory note is required to contain four essential ingredients: (i) an unconditional undertaking to pay, (ii) the sum should be the sum of money and certain, (iii) the payment should be to or to the order of a person who is certain, or to the bearer, of the instrument, and (iv) the maker should sign it. If an instrument fulfils these four conditions, it will be called a promissory note, and the requirement of attestation of a document provided under Article 17(2)(a) of the Qanun-e- Shahadat, 1984, does not apply to a promissory note.1 That apart, two more things also need to be clarified here. First, if an instrument, notwithstanding the provisions of (S.B.) Hon’ble Mr.Justice Muhammad Ijaz Khan, J (Jamil)

section 4 of the Negotiable Instruments Act, 1881, is attested by witnesses, the nature and character thereof shall not be affected. It shall remain a promissory note and shall not be converted into a bond within the meaning of section 2(5)(b) of the Stamp Act, 1899.2 Secondly, if a promissory note is not witnessed, it does not appear that any third person saw it signed, in which case, the best evidence is the handwriting of the parties. But if it is witnessed, then it appears, on the face of the promissory note, that there is better evidence behind it; and the best evidence that the nature of the case admits of, the law requires.

5.There is no denying that in this case, two persons, namely Khalil Ahmed and Ghulam Hussain, were shown as witnesses of the promissory note, but only Ghulam Hussain (PW.2) was produced in the witness box. As stated above, the attestation of the promissory note was not a requirement of law; the non-appearance of the second witness could not be made a ground for excluding the promissory note from evidence. It follows, therefore, that the courts erred in law in holding that the promissory note was not admissible in evidence.”

The plain reading of the aforesaid findings of the Apex Court are clear in its language to the effect that (S.B.) Hon’ble Mr.Justice Muhammad Ijaz Khan, J (Jamil)

non-production of second marginal witnesses of a pro- note for the proof of such pro-note is not fatal for the case of a plaintiff. In another case1, it has been held that The Negotiable Instruments Act, 1881 is a special law which does not require attestation by witnesses or provides for any bearing of attestation or non-attestation on the instrument and it is clear that neither any attestation is required on the promissory note nor there is any requirement of calling the witnesses to prove its execution. During the course of arguments learned counsel for the appellant though produced two judgments of this Court titled “Ghulam Abbas Vs. Atif Farooq” reported as 2019 YLR 2464 and “Umar Khan Vs. Nazir” reported as 2019 SCMR 935, whereby, a single bench of this Court has held that in pro-note cases, the non-production of the second marginal witness is fatal, however, since there is a judgment of the Apex Court by a bench comprising of three Hon’ble Judges of the Supreme Court, therefore, this Court is bound to follow the law as laid down by the Apex Court.

6.As far as the merit of the case is concerned, it is the case of respondent/plaintiff that initially, an “Allah Ditta vs. Zulfiqar” (2023 CLC 905) (S.B.) Hon’ble Mr.Justice Muhammad Ijaz Khan, J (Jamil)

agreement deed dated 08.11.2021 (Ex.P.W 2/1) was executed between the parties, vide which the appellant/defendant agreed to transfer land mentioned therein against the sale consideration of Rs. 81,00,000/- (Eighty-One lakhs) and the respondent/plaintiff paid the said amount, however, later on appellant/defendant could neither transfer the said land to the respondent/plaintiff nor he could deliver its possession as the said land was in the name of another person. It is further the case of respondent/plaintiff that when the appellant/defendant failed to transfer the property and to deliver its possession thereafter, he approached to him for the return of the sale consideration amount of Rs. 81,00,000/- (Eighty One Lakhs) however, initially he acted in dilly-dally and subsequently, due to intervention of the elders of the locality, he executed an affidavit, which was exhibited as Ex.P.W 2/2. Similarly, he also executed a pro-note, Ex.P.W 2/3. In support of his contention, the respondent/plaintiff has produced a marginal witness of the affidavit, Ex.P.W 2/2 and of pro-note Ex.P.W 2/3 namely Liaqat Khan as P.W-3 and who has verified and owned that the affidavit and pro- note, were duly signed and thumb impressed by him. He also stated that the pro-note and the affidavit were (S.B.) Hon’ble Mr.Justice Muhammad Ijaz Khan, J (Jamil)

scribed in his presence and both the parties also signed and thumb impressed the same. In order to further substantiate his stance, the respondent/plaintiff has also produced scriber of the affidavit, namely Muhammad Shahab as P.W-1 and who too has supported the execution and signature of the parties over the affidavit, Ex.P.W 2/2 and pro-note, Ex.P.W 2/3 and stated that the same were scribed by him. In order to further substantiate his case, the respondent/plaintiff has personally appeared in the witness box as P.W-2.

Similarly, the respondent/plaintiff has also produced Azam Khan as P.W-4, and Muhammad Usman as P.W- 5, who are marginal witnesses of the Iqrar Nama ()اقرارنامہ, Ex.P.W 2/1. The respondent/plaintiff also produced Hassan Bahadar, who is the stamp vendor of the agreement dated 08.11.2021 and thus, on the available record, the respondent/plaintiff has produced overwhelming evidence to establish his case.

7.As against this, only the appellant/defendant has personally appeared as D.W-1 and even during the course of his cross-examination, he has made the following admission:

مورخہ18 "يہ درست ہے کہ دستاويز نمبر پر ميرا شناختی کارڈ نمبر درج08.11.2021 ہے۔ جو کہ ميں نے تحرير کی ہے۔ اس طرح

(S.B.) Hon’ble Mr.Justice Muhammad Ijaz Khan, J (Jamil)

پرونوٹ پر بهی ميرا شناختی کارڈ نمبر درج ہے۔ اسی طرح تمام دستاويزات پر ميرا نام اور "ولديت تحرير ہے۔

He has further admitted that:

دعوی ميں ميرے وکيل نے ٰ جواب4 "فقره نمبر يہ درست لکها ہے کہ مبينہ پرونوٹ پر ميرا فراڈ سے ليا گيا تها اوررقم درج/دستخط دهوکہ نہيں کی گئی تهی اور ستره لاکه روپے جو کہ ميرے زمے اخراجات تهے کی سکيورٹی کی نسبت لکها تها۔ يہ درست ہے کہ ميں نے کسی مجاز عدالت يا مجاز اتهارٹی کے سامنے موجوده دستاويزات )پرونوٹ( چيلنج نہيں کی ہے۔ يہ بهی درست ہے کہ ميں نے تا حال ڈيڈ رائٹر اور گواہا ن وغيره پر جهوٹی اور فراڈی دستاويزات تيار کرنے کے خلاف کوئی "درخواست وغيره نہيں کی ہے

In view of the above clear-cut admission by the appellant/defendant, whereby, he has admitted the execution of the pro-note, nevertheless, his stance was that the same has been executed on the basis of fraud, however, till date he has neither filed any suit or application for the cancellation of that deed nor he has initiated any criminal proceeding against their beneficiary or marginal witnesses or scriber, therefore, he has not been able to prove his stance and thus, the learned Trial Court has aptly appreciated the evidence of the parties and has rightly decreed the suit of the respondent/plaintiff.

8.During the course of arguments, learned counsel for the petitioner stated that the pro-note has not been (S.B.) Hon’ble Mr.Justice Muhammad Ijaz Khan, J (Jamil)

made for a valid consideration as he has not executed the same, however, on one hand as stated herein above that he has not denied the execution of the pro-note rather his stance is that the same was executed on the basis of fraud and that instead of Rs. 17,00,000/- (Seventeen Lakhs) lakhs Rs. 81,00,000/- (Eight One lakhs) has been mentioned and on the other, there is a statutory presumption attached to a pro-note under section 118 (a) of The Negotiable Instrument Act, 1881 to the effect that a pro-note was validly made or drawn and as such, if any party denied the same then such party has to prove the same through cogent, confidence inspiring and trustworthy evidence, so as to rebut the said statutory presumption, however, as stated herein above that the appellant/defendant has not been able to produce any such evidence and as it is an admitted position that the instant suit has been filed on the basis of a negotiable instrument i.e. a pro-note and as it does qualify all the five conditions of a valid negotiable instrument i.e.

firstly, that the instrument must be in writing, secondly that the maker should sign it, thirdly, that there should be an unconditional undertaking to pay, fourthly, that the sum of money should be certain and fifthly, that the payment should be to the person, who is certain and thus, (S.B.) Hon’ble Mr.Justice Muhammad Ijaz Khan, J (Jamil)

the subject pro-note do qualify all the aforesaid ingredients of a valid negotiable instrument as under the law presumption is attached to the effect that the same has been made and drawn for a valid consideration. It would be relevant to mention here that in cases of negotiable instruments consideration is to be presumed until the court believe that the consideration does not exist or consider its nonexistence. In Muhammad Aziz Ur Rehman case2, a larger bench of the Apex Court has held that until the controversy is proved, the presumption shall be made that negotiable instrument was made or drawn for consideration. Similarly, in another case3, it was observed that as per mandate of Section 118 of the Negotiable Instrument Act, it had devolved on the defendant to prove that the promissory note which was executed by him was without consideration. Similarly, in a case4, it was ruled that there is initial presumption that a negotiable instrument was made, drawn, accepted or endorsed with the consideration. It was further held that the same presumption is rebuttable, however, such onus is on the Muhammad Aziz-ur-Rehman vs. Liaqat Ali (2007 SCMR 1820) Muhammad Boota Vs. Fiaz Ahmed (1979 SCMR 465) Haji Karim and another vs. Zakir Abdullah (1973 SCMR 100) (S.B.) Hon’ble Mr.Justice Muhammad Ijaz Khan, J (Jamil)

person who deny its consideration In a case5, the Hon’ble Apex Court has held that it is trite law that the burden to rebut this presumption lies upon the party arguing that the negotiable instrument has not been made/drawn for consideration. Reference is made to the case of “Haji Karim v. Zikar Abdullah” (1973 SCMR 100 at page 101). However, this raises the question:

how can this presumption be rebutted? The answer has been provided by the Indian Supreme Court in the case of “Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Payrelal” ([1999] 1 SCR 704).

"13. ...The defendant can prove the non- existence of consideration by raising a probable defence... The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the

circumstances upon which he relics... The bare denial of the passing of the consideration apparently does not appear to be any defence.

Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To Rab Nawaz Khan Versus Javed Khan Swati (2021 SCMR 1890).

(S.B.) Hon’ble Mr.Justice Muhammad Ijaz Khan, J (Jamil)

disprove the presumption, the defendant has to bring on record such facts and

circumstances, upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would.

under the circumstances of the case shall act upon the plea that it did not exist."

And thus in view of the aforesaid settled jurisprudence, the objection of the learned counsel for the appellant is repelled.

9.In view of the above discussion and exposition of law on the subject, the instant Regular First Appeal being bereft of any merits is hereby dismissed and consequently, the impugned judgment and decree of the learned trial court dated 05.01.2024 is maintained and upheld.

ANNOUNCED.

(Sher Hassan)

JUDGE

(S.B.) Hon’ble Mr.Justice Muhammad Ijaz Khan, J (Jamil)