IN THE SUPREME COURT OF PAKISTAN 
 
 
 
 
 (Appellate Jurisdiction)  
 
 
PRESENT:  
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL  
MR. JUSTICE MUNIB AKHTAR  
 
 
Civil Petition No. 84/2016 
(On appeal from the judgment dated 26.10.2015 passed by the Peshawar High 
Court, Mingora Bench (Dar-ul-Qaza), Swat in C.R.No.902-M/2012). 
 
 
Sajjad Ahmad Khan  
…Petitioner   
 
 
 
 
 
 
VERSUS 
 
 
Mohammad Saleem Alvi & others 
 
…Respondents  
 
 
 
    
 
For the petitioner:  
Mr. Naveed Akhtar, ASC 
  
 
Respondents: 
 
Mr. Muhammad Ilyas Siddiqui, ASC 
(No.2-3) 
 
 
 
Date of hearing: 
 
20.10.2020 
 
 
JUDGMENT  
 
MAZHAR ALAM KHAN MIANKHEL, J-.   
 
 
 
Petitioner being plaintiff of a suit for specific performance 
through instant Petition for Leave to Appeal, has questioned the 
impugned judgment dated 26th October, 2015 rendered by learned 
single Judge in Chambers of the Peshawar High Court, Mingora 
Bench (Dar-ul-Qaza), Swat, whereby the learned Judge while 
dismissing the civil revision upheld the concurrent findings of the two 
courts below regarding dismissal of suit of the petitioner.  
 
2. 
 
Learned counsel for the parties were heard and record of 
the case was perused.  
 
C.P.84/2016 
 
2 
3. 
 
It appears from the record that there was an oral sale 
agreement between Petitioner and Defendant/Respondent No.1 
probably on or before 6th August, 1991 when first receipt of earnest 
money was executed between them and later on an agreement to sell 
(which itself does not bear any date of execution). (Agreement),       
Ex-PW-2/1, was executed between parties ibid and Petitioner signed 
the agreement on 16th February, 1992. The agreement, Ex-PW-2/1, 
refers to a sale, in lieu of Rs.3,37,500/- (Rupees three lac thirty seven 
thousand five hundred) with Respondent No.1 regarding suit property 
fully described in the agreement and the plaint. Certain amounts of 
sale consideration were paid in advance and proper receipts were 
duly executed by Respondent No.1 and Rs.200,000/- (Rupees two 
lac) was paid to Respondent No.1 on 24th January, 1992. The entire 
amount of Rs.2,71,000/- (Rupees two lac seventy one thousand) paid 
to Respondent No.1 as earnest/advance at different times was duly 
reflected in the agreement Ex-PW-2/1 alongwith the dates. It was 
also agreed upon between the parties that the balance sale 
consideration of Rs.66,500/- (Rupees sixty six thousand five 
hundred) would be paid at the time of registration of sale deed. We 
may observe that no specific date for completion of the agreement 
was given. The physical possession of the suit property was also 
handed over to the petitioner before the execution of agreement and 
this very fact has also been reflected in the agreement Ex-PW-2/1 
besides being established from the record. When Respondent No.1 
failed to execute a proper sale deed in favour of petitioner, a suit for 
specific performance was filed by the petitioner and the same was 
decreed ex-parte vide judgment and decree dated 18th December, 
1997 in favour of petitioner. 
 
C.P.84/2016 
 
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4. 
 
The other part of the story which appears from the record 
is that Defendant/Respondent No.2 (subsequent vendee) (Respondent 
No.2) filed an application under Section 12(2) of the Code of Civil 
Procedure, 1908 (C.P.C.) which was accepted vide order dated 25th 
November, 2004 and the said order was upheld in appeal. 
Resultantly, ex-parte judgment and decree dated 18th December, 
1997 ibid was set aside and an amended plaint was accordingly filed 
wherein Respondent No.2 was also impleaded as Defendant No.2. 
Respondent No.1 being vendor and Respondent No.2 being 
subsequent vendee, filed their joint written statement by alleging an 
agreement to sell dated 11th February, 1992 (subsequent agreement) 
by Respondent No.1 in favour of Respondent No.2. Record of the case 
further reveals that Respondent No.1 and Respondent No.2 were also 
locked in a litigation due to this subsequent agreement and 
ultimately a fresh agreement dated 16th September, 1997 followed by 
a compromise between them was effected. Accordingly, a decree on 
the basis of said compromise in favour of Respondent No.2 was 
passed in the Civil Court of District Rawalpindi (leaving aside the 
question of territorial jurisdiction and cause of action). Thereafter, 
Respondent No.1 executed a registered deed of general power of 
attorney in favour of Respondent No.2. Respondent No.2 then 
transferred the suit property as an attorney in favour of Respondent 
No.3 (His Son) through a registered deed bearing No.38 dated 15th 
January, 2005.  
 
 
 
The Respondent No.3 after becoming owner of the 
property filed a suit for possession and permanent injunction against 
the petitioner and his wife. This suit by Respondent No.3 itself 
establishes the factum of possession of the suit property with the 
C.P.84/2016 
 
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petitioner. Both the suits (suit for specific performance filed by petitioner 
and suit for possession filed by Respondent No.3), pending trial were 
consolidated. After a full-fledged trial, the trial court dismissed both 
the suits vide its judgment and decree dated 18th August, 2011. Two 
separate appeals filed by plaintiffs of both the suits, were also 
dismissed by the appellate court vide its judgment and decree dated 
14th September, 2012. The issues regarding alleged subsequent sale 
in favour of Respondent No.2 and then to Respondent No.3 were 
decided against Respondents No.2 & 3. Though Respondent No.3 
challenged said findings by way of an appeal but that too was 
dismissed by upholding the findings of Trial Court and did not 
question the same before High Court. So, the findings regarding 
subsequent sale attained finality against Respondents No.2 & 3. The 
High Court maintained and upheld the concurrent findings of 
dismissal of suits and appeals by dismissing the civil revision filed by 
present petitioner vide impugned judgment. Respondent No.3 did not 
question the findings of dismissal of his appeal which attained 
finality.   
 
5. 
 
 The main reason which prevailed with the learned Judge 
of the High Court in Chambers was that payment of sale 
consideration reflected in three different receipts was not proved 
according to law and witnesses mentioned in the receipts were also 
not produced and similarly the very agreement (Ex-PW-2/1) was also 
not proved in accordance with the provisions of Article 79 of the 
Qanun-e-Shahadat Order, 1984 (Q.S.O.,1984) as out of the two 
attesting witnesses only one witness was produced.  
 
 
6. 
 
As far as the payment of part of sale consideration 
through three different receipts ibid is concerned, the same as well as 
C.P.84/2016 
 
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further payment of Rs.200,000/- (Rupees two lac) on 24th January, 
1992 has been reflected in the agreement alongwith their respective 
dates and thereby an amount of Rs.2,71,000/- (Rupees two lac 
seventy 
one 
thousand) 
out 
of 
total 
sale 
consideration 
of 
Rs.3,37,500/- (Rupees three lac thirty seven thousand five hundred) 
was admitted to have been received. Respondent No.1 himself was 
the author of the agreement. Record reflects that it was an oral 
agreement to sell when first part payment was paid on 6th August, 
1991. Needless to mention here that it is a settled law that a 
sale/agreement to sell can be oral or offer and acceptance of sale can 
also be inferred from the acts of the parties to the sale agreement. We 
may refer to a judgment dated 9.7.2020 of this court titled Abdul 
Hameed v. Jahangir Khan passed in Civil Petition No.3097/2015 & 
Civil Appeal No.1074/2015) and Muhammad Sattar v. Tariq Javaid               
(2017 SCMR 98) and this question has very well been dealt with in 
the above judgments. Respondent No.1 though in his joint written 
statement has alleged the agreement and his signatures over the 
same as fake and fictitious but has not specifically challenged the 
agreement in question either by way of criminal proceedings or 
through a civil suit. Simple denial of a document being fake and 
fictitious is not legally sufficient unless the same facts are proved and 
established on the record. Possession of the petitioner at the site has 
also been admitted even by Respondent No.3, in his suit, in the 
shape of some sort of constructions made by the petitioner. 
Respondent No.1 even disappeared from the scene and left the 
Respondents No.2 & 3 to contest the suit with petitioner. He even did 
not appear as a witness to rebut the material brought against him 
what to talk of proving his allegations against the petitioner. 
 
C.P.84/2016 
 
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7. 
 
As far as non-appearance of the second attesting witness 
of the agreement, Ex-PW-2/1, is concerned, that has undisputedly 
been brought on the record that the other witness, Dr. Fazal Sher 
Khan was not available and was residing in America. The provisions 
of Article 79 (Q.S.O.,1984), are applicable only in those cases where 
execution of a document is disputed between maker of document and 
the person in whose favour purportedly the same is executed. Here in 
this case, execution of the agreement Ex-PW-2/1, though has been 
denied and disputed by Respondent No.1 by filing his joint written 
statement but mere denial would not be sufficient in presence of 
plethora of overwhelming evidence on the record. Such an evidence 
cannot be discarded merely for non-production/appearance of 
second marginal witness. The prime and foremost requirement of 
Article 79 (Q.S.O.,1984) is to prove execution of a document in case 
of a denial of execution by producing two marginal witnesses. When 
the allegation goes un-rebutted that Respondent No.1 himself was 
the author/scribe of the document. When again un-rebutted fact is 
there on the record that the other witness being abroad was not 
capable of giving evidence, when the stance of Notary Public regarding 
attestation of agreement goes un-shattered, when PW-1, Hamayoon 
Shinwari not only confirms the execution rather gives each and every 
detail of the transaction between petitioner and Respondent No.1 and 
PW-4 is also the witness of execution and the entire evidence 
supported by the petitioner himself then in the given circumstances 
mere non-production of other attesting witness of Ex-PW-2/1 being 
not available would be nothing much less a hyper technicality and 
not the violation of Article 79 ibid. We may observe that concurrent 
findings of dismissal of suit by the three courts are a bitter and 
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distressing example of misreading and non-reading of material 
evidence available on the record and misapplication of law.  
 
8. 
 
We in the circumstances are left with no option but to 
convert this petition into appeal and allow the same with costs. The 
concurrent findings of the three courts below dismissing the suit of 
petitioner are set-aside.  
 
9. 
 
By keeping in mind the conduct of Respondent No.1, we 
hereby decree the suit of petitioner for specific performance of 
agreement to sell Ex-PW-2/1 in lieu of Rs.3,37,500/- (Rupees three 
lac thirty seven thousand five hundred) out of which Rs.2,71,000/- 
(Rupees two lac seventy one thousand) have already been paid to the 
Respondent No.1. Balance of Rs.66,500/- (Rupees sixty six thousand 
five hundred) be deposited in the trial court within sixty (60) days 
from today. Needless to mention that the alleged subsequent sale of 
suit property in favour of respondent No.2 and then in favour of 
respondent No.3 being sham transactions are hereby cancelled and 
the same will have no adverse effects on the rights of the petitioner.  
 
 
Judge 
 
 
 
Judge  
 
Islamabad,  
20th October, 2020 
Sarfraz /-  
‘’APPROVED FOR REPORTING’ 
