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-- S. 68 -Qanun-e-Shahadat Order (10 of 1984), Art. 79-Document required to be attested, proof of document, by any law, was required to be attested, production of attesting witness, if alive, held, was mandatory requirement-In absence of such requirement under any law for attestation of document by a witness, there would be no legal requirement to produce attesting witness to prove such document.

(b) Evidence Act (I of 1872)-

- S. 68-Attested document-Failure to produce attesting witness effect-Non-production of attesting witness in proof of document, held, would not warrant drawing of adverse inference, if plaintiff could otherwise prove execution of disputed document.

(c) Evidence AM (I of 1872)-

-- Ss. 31 & 115-Admissions-Effect-Admissions, held, were not conclusive proof of matters admitted but could operate as estoppel.

Eastern Federal Union Insurance Company Limited v. Bawany Industries Limited, Karachi 1979 C L C 321 and A I R 1946 Lab. 65 ref.

Ahmad Khan v. Rasul Shah and others P L D 1975 S C 311 rel.

(d) Evidence Act (I of 1872)-

-- S. 73 - Comparison of disputed signatures - Competency of Court-Court, held, was competent to compare disputed signature with admitted signature in order to arrive at a conclusion - It would, however, be desirable to obtain assistance of expert in this behalf.

Messrs Muhammad Yousql-lgbal Ahmed v. II'th Sind Labour Court.

Karachi arid another P L I) 1977 Kar. 71 1 rel.

(e) Negotiable Instruments Act (XXVI of 1881)-

-- S. 118-Pronote-Proof of execution - Payment of considera tion-Presumption-Until contrary is proved there would be pre sumption that every negotiable instrument was made or drawn for consideration-Sucb instrument when accepted, endorsed, negotiated or transferred, held, was endorsed, negotiated or transferred for consideration.

Halsbury's Laws of England. Fourth Edn., Vol TV, p. 379; Shed Haider Aabdi v. Syed laved Aabdi N L R 1980 U C 353; Ali Muhammad and 2 others v. Ghulam and another P L D 1983 Kar. 99; Salar Abdur Rauf v. Mst. Batkat BIN 1973 S C M R 332; Mahamood Hassan Ashraf v. Shakil Ahmad 1973 S C M R 595; Ramani Mohan Bhattaeharjee v. Surjya Kumar Dhar and another A I R 1943 Cal. 22; L. Ram Nath and another v. Lal Ram Chandra Mal A I R 1935 All. 154; Tarmahomed Haji Abdul Rehman v. Tyeb Ibrahim Bharamchari A I R 1949 Bom. 257; Sundar Singh v. Khushi Ram and another A I R 1927 Lab. 864; Bishambar Das v. Ismail and others A I R 1933 Lab. 1029 and Mi. Nando v. Mi. Dulara A I R 1933 Oudh 394 ref.

(f) Negotiable Instruments Act (XXVI of 1881)-

-- S. 118-Evidence Act (I of 1872), S. 102-Suit based on pronote --Proof of consideration-Burden of proof-In suit based on pronote, burden of proof of execution of such pronote, held, would shift to defendant to prove want of consideration-Such burden could be discharged either by leading evidence by party denying considera tion or relying upon evidence of adversary on record which was contrary to presumption in favour of consideration.

Mahmood Hassan Ashrafi v. Shakil Ahmad 1973 S C M R 595 rel.

(p) Evidence Act (I of 1872)-

-- S. 102 - Burden of proof, shifting of-Requirements-Where defendant denied on oath of having received consideration, burden of proof, held, would shift on plaintiff to bring on record some evidence to show that factually such consideration was paid Failure of plaintiff to lead evidence in proof of such consideration after shifting of burden would not prove receipt of consideration by defendant.

Basharatullah for Appellant.

Khalid Malik for Respondent No. 1.

Dates of hearing: 5th, 9th 10th and 11th March, 1986.

JUDGMENT

AJMAL MIAN, ACTG. C. J.

-This appeal is directed against the judgment and decree dated 9th April, 1979, passed by the learned Senior Civil Judge, Quetta in Civil Suit No. 93 of 1963. The brief facts leading to the filing of the above appeal are that late Ch. Imdad Ali son of Hussain Bux, Proprietor of M. lmdad Ali & Company Jinnah Road, Quetta now represented by his legal heirs the appellants filed the above suit for the recovery of Rs., 2,48,889 against the present three respondents in the Court of Senior Civil Judge, Quetta on the basis of the averment that on 24th July, 1961, the defendant No. I executed a pronote (hereinafter referred to as the pronote) at Quetta for Rs. 2,48,889 for full and complete consideration received in favour of defendant No. 2 in presence of the attesting witnesses. A photocopy of which was enclosed. It was also averred that defendant No. 2 later on transferred the pronote in his favour on 26th August, 1963; for full consideration received from the plaintiff and an endorsement to this effect was made on the back of the pronote. It was also averred that defendant No. 3, the husband of defendant No 2 stood as surety to reimburse the plaintiff in the event of it being found that the liability of defendant No. 1 under the pronote did not subsist at the time of transfer of tile said pronote in favour of the plaintiff;

A copy of surety bond was also enclosed executed by defendant No. 3. It was further averred that defendant No. 3 was informed about the above indorsement through a registered letter dated 27th August, 1963, which was replied to by defendant No. 1 by his letter dated 31st August, 1963, averring, therein, that th: entire sum against the pronote had been paid over to defendant No. 2. It was also stated that after presenting the pronote through the Notary Public, suit was filed as the payment was not made.

Defendant No. 1 in his written statement apart from taking technical objections, averred that he had never executed the pronote for Rs. 248,889 or for any other sum. It was also denied that the said defendant had borrowed the said amount or any other amount. It was asserted that there was no occasion for the execution of the document, nor theft was any basis for the consideration mentioned in the document. The execution as well as the consideration were denied.

Defendants Nos. 2 and 3 filed a joint written statement admitting the factum of execution of the pronote and the payment of consideration and also admitting the fact that defendant No. 2 had transferred the pro note in favour of the plaintiff. It may be pertinent to point out that in para. 1 of the written statement it was stated that defendant No. 1 had executed the pronote in favour of the answering defendants and not defendant No. 2 alone. It was also prayed in the above written statement that a decree be passed against defendant No. 1.

2. It seems that there was controversy as to the sufficiency of stamp on the pronote, which was settled by a judgment, dated 12th May, 1969, given by a D. B. of the erstwhile High Court of West Pakistan at Quetta in 1st R. F. A. No 50 of 1965. There was also controversy as to the framing of the issues which was settled by the erstwhile High Court of West Pakistan through a judgment dated 15th February, 1965, passed in Revision Application No. 7 of 1964. The following issues were finally framed:-

Issues

(1) Has the plaintiff contravened the provisions of Order VII, rule 14 and Order XI, rule 3, C. P. C.

(2) Is the promote in dispute properly stamped

(3) Is the pronote in dispute executed and endorsed by defendant No. 1, or is it forged document

Note:-The burden to prove the first part of third issue will be on the plaintiff and burden to prove the second part of it will be or the defendant but evidence on both parts will be led simultaneously because the two parts being contradictory in the event of one of them being established the other parts will be automatically disproved. The evidence be produced first by the plaintiff.

(4) Whether the pronote in dispute is without consideration

(5) If the pronote was endorsed by defendant No. 2 in favour of the plaintiff then was defendant No. 3 to be surety for defendant No. 2 "

3. It may be stated that defendants Nos. 2 and 3 remained ex pane after filing of the written statement, whereas, the plaintiff examined himself and ten witnesses, namely P. W. 1 Sultan Muhammad son of Haji Muhammad Umer (Exh. 14), a clerk from the Stamp Office P. W. 2 Agha Ghulam Ali son of Sardar Jafar Buledi (Exh. 14) defendant No. 3 and the husband of defendant No. 2, P. W. 3 Dr. Muhammad Khairuddin Saggu son of Haji Muhammad Shamsuddin Saggu (Exh. 16), the Notary Public through whom the pronote was presented and the protest was lodged, P. W. 4 Sardar Ali Beg son of Mirza Ali Akbar Beg (Exh. 17), a Petition Writer who had allegedly prepared the draft of the pronote in the presence of the three defendants, P. W. 5 Muhammad Ali son of AI ah Rakha '(Exb. 18), another Petition-Writer who drafted the endorsement on the back of the pronote, P. W. 6 Muhammad Ishaque son of Yazdan Khan (Exh. 19), a businessman and politician friendly with the plaintiff and to whom defendant No. I allegedly complained as to why the plaintiff had purchased the pronote and through whom he had allegedly offered to pay Rs. 1 Jac in case the plaintiff would return the pronote, P. W. 7 Mian Saifullah Khan son of Hafiz Muhammad Habibullxh (Exh. 20) another politician who was allegedly approached by defendant No. 1 to arbitrate in the dispute regarding the pronote, P. W. 8 Aftab Ashraf son of Ashraf Ali (Exh. 21), an Officer in the Habib Bank Limited, Jinnah Road Branch, Quetta since 1969 and who had brought the specimen signature of defendant No. I from his Bank, where the defendant No. 1 had an account, P. W. 9 Cyril G. Bhan son of E. T. Bhan (Exh. 22), Handwriting Expert who had testified that the signature on the pronote is of that defendant No. 1. He has also produced his report and enlarged the photographs of disputed and admitted signature of defendant No. 1 and P. W. 10 Maraj Din son of Ghulam Nabi (Exh. 23), an employee of the plaintiff who has deposed that the plaintiff had, paid a sum of Rs. 2,48,889, to defendant No. 2 in his presence. The plaintiff in his statement reiterated the contents of the plain

Whereas, the defendant No. 1's ocular evidence comprises of himself and 7 witnesses, namely. D. W. 1 Qazi Anwarul Haq son of Qazi Fazal Haque (Exh 24) an Account. Clerk in National and Grindlays Bank, Quetta, who stated that the plaintiff did not have any account during the last ten years with his Bank, D. W. 2 Zaka A. Malik (Exh. 25) Handwriting Expert who has produced his report and the enlarged photographs of disputed and admitted signatures. He has deposed that the signature on the pronote is not that of defendant No. 1 D. W. 3 Abdul Haq (Exh. 26), a representative of the Urban Co-operative Bank, Jinnah Road, Quetta who has deposed that the plaintiff had three different personal accounts in the Bank on 31st August, 1963. and a sum of Rs. 3,81,078.42 was outstanding against him. In the cross-examination, he admitted that there was no debit in the three accounts of Ch. Imdad All in July, 1961, D. W. 4 Syed Ghulam Rasool son of Syed of Yasin (Exh. 27), the Chief Accountant of defendant No. 1 working with him for more than 15 years. He has stated that the signature on the pronote is not of defendant No. 1 and that the defendant No. 1 had never taken any loan from defendant No. 2, D. W. 5 Mir Khuda Dad Khan son of Mir Khaliq Dad Khan (Exh. 28), a relation of defendant No. 1, who was also working in his office. He has deposed that the pronote Exh. P/5 does not contain defendant No. 1's signature, D. W. 6 Muhammad Afzal son of Sardar Khan (Exh. 29). He drafted the reply dated 31st August, 1963, (Exh. D/31 to the plaintiff's notice dated 27th August, 1%3, about the transfer of the pro note by defendant No. 1 in his favour by indorsement, D. W. 7 Sh Abdul Haq son of Abdul Aziz (Exh. 30), another employee of defendant No. 1, who has deposed that the signature on the pronote is not of defendant No. 1. The defendant No. 1 in his deposition has denied the factum of having received Rs. 2,48,889 or any other sum from defendant No. 2. He also denied the signature on the pronote and has stated that the same was forged.

The learned trial Court decreed the suit against defendants Nos. 2 and 3, but dismissed the suit against defendant No. 1, inter alia, on the ground that not a single attesting witness to the pronote was examined by the plaintiff and, therefore, the execution of the pronote has not been proved and consequently, the second part of the Issue No. 3 relating to forgery, reproduced herein below, automatically stands proved.

"Issue No. 3.

Is the pronote in dispute executed and indorsed by defendant No. 1, or is it forged document 7"

Under Issue No. 4, he held that neither the execution of the pronote, nor the payment of consideration was proved. The appellant being aggrieved by the above judgment/decree has filed the present appeal.

4. In support of the above appeal. Mr. Basharatullah, learned counsel for the appellant/plaintiff has urged as. follows:-

(i) That there was no requirement of law that in order to prove the execution of a pronote an attesting witness is to be produced;

(ii) That on the basis of the material on record, the execution of the pronote by defendant No. 1 stood established;

(iii) That since the appellant succeeded in establishing that defendant No. 1 had executed the pronote, the burden of proof to prove that the pronote was without consideration was on defendant No. I in view of section 118 of the Negotiable Instruments Act, which he failed to discharge;

(iv) That the learned trial Court should have passed a decree against defendant No. 1.

On the other hand, Mr. Khalid Malik, learned counsel for the respondent No. I/defendant No. I has urged as follows:-

(i) That since there were two attesting witnesses to the pronote and as it was averred in the plaint that the pronote was executed in presence of the said attesting witnesses, the plaintiff was obliged to produce both or any of them to prove the execution of the pronote and in the absence of their being examined, an adverse inference is to be drawn;

GO That the plaintiff' had not examined either any of the attesting witnesses to the pronote or defendant No. 2 in whose favour the pronote was executed and, therefore, the execution of the pro note was not proved:

(iii) That under section 118 of the Negotiable Instruments Act, the presumption in favour of the payee of a pronote is rebuttable, which in the instant case, stands rebutted by the evidence of the plaintiff himself, particularly of P. W. 2 Agha Ghulam Ali (defen dant No. 3); and has rightly dismissed the suit against defendant No. I .

5. Adverting to the question, whether in terms of section 68 of the Evidence Act, it is mandatory to produce an attesting witnesses in order to prove the execution of a pronote, it may be pertinent to reproduce herein below the above section, which reads as follows:-

"Section 68.-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 one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will which has been registered in accordance with the provisions of the Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied."

A plain reading of the above quoted section indicates that if a document by any law is required to be attested, the production of a attesting witness, if alive, is a mandatory requirement, if the execution of the same is denied. It is, therefore, evident that in order to press into service the above section, one has to ascertain whether under any law particular document which is to be proved, was required to be attested. If there is no such requirement under any law for attestation of a docu ment by a witness, there is no legal requirement to produce an attesting witness in terms of above-quoted section 6.8 to prove the same. Mr. Khalid Malik, learned counsel for the respondent/defendant No. 1 unable to cite any provision of any law, which requires that a pronot should be attested by one or more witnesses. In this view of the matter the learned trial Court could not have concluded that because none the attesting witnesses was produced by the plaintiff, the execution of the pronote by defendant No. I was not established. While dilating on the above aspect, it may be pertinent to take up the other contention o Mr. Khalid Malik which is a second limb of the same argument, namely, that since the pronote was attested by two witnesses and as the plaintiffs failed to produce any one of them, an adverse inference should be drawn against the plaintiff. It may be observed that simpliciter non-production of an attesting witness will not warrant drawing of an adverse inference, if a plaintiff can otherwise prove the execution of a disputed document.

6. Adverting to the question of execution of the pronote, it may be observed that the plaintiff has not produced any witness before whom the pronote was executed by defendant No. I or the consideration was passed, nor defendant No. 2 in whose favour the pronote was executed, was examined. The testimony of P. W. 4 Sardar Ali Beg, a Petition. Writer at the most prove& the preparation of a draft of the then proposed pronote, which was according to him handed over by bite to defendant No. 3/P. W. 2 Ghulam Ali. Though P. W. 2 Ghulam Ali (defendant No. 3) and the husband of defendant No. 2 in whose favour the pronote was executed. in his examination-in-chief bad stated that the pronote was executed in his presence and the consideration was passed in his presence. However, in his cross-examination, which was conducted after five years and 18 days from the date of examination-in-chief he made the following statement:-

"The transaction regarding the promissory dote in suit was initiated by the plaintiff. It is possible that the currency notes might not have been passed by my wife to Mir Qadir Bakhsh and from the plaintiff to Fatimah Gul my wife. The signatures of Mir Qadir Bakhsh on the promissory note Exh. P/5 are not legible. The witnesses did not sign the promissory are not legible. The witnesses did not sign the promissory note Exh. P/5 in my presence. Barlass, Petition-Writer wrote the promissory note and I do not know to whom it was given. If the signatures of Haji Qadir Bakhsh are legible I can identify."

It is, therefore, evident that there is no ocular evidence on record in support of execution of the pronote by defendant No. 1. However, Mr. Basharatullah, learned counsel for the appellant has, inter alia, relied upon the two documents, namely, the plaintiff's notice,, dated 27th August, 1963 (Exb. P/6) addressed to defendant No. 1 intimating to him that by making payment of Rs. 2,48,889 to defendant No. 2, he had obtained indorsement on the pronote in his favour and a reply dated 31st August, 1963 (Exh. D/3) in which, defendant No. 1 had stated that the amount of the pronote was paid lump sum in respect of the land before Magistrate Ist Class and that be was not liable and that he had also attested a stamp paper about the above payment. Since the controversy as to the execution of the pronote mainly binges on the above two docu ments, it .May be advantageous to reproduce the same, which read as follows:-

Dated 27-8-1963

7. Mr. Basharatullah, learned counsel for the appellant on the basis of the above reproduced reply has vehemently urged that the execution of the pronote by defendant No. 1 stands established, particularly in view of the fact that there is corroborative evidence in the form of scribe of the draft P. W. 4 Sardar Ali Beg and the statement of P. W. 6 Muhammad Ishaque through whom defendant No. 1 had allegedly offered to pay Rs. 1 lac for the return of the pronote and P. W. 7 Mian Saifullah Khan, to whom defendant No. 1 had allegedly approached for arbitration in the dispute coupled with the evidence of Cyril G. Bhan. Reliance has been placed on section 31 of the Evidence Act and the following cases:-

(i) Eastern Federal Union Insurance Company Limited v. Bawany Industries Limited Karachi 1979 C L C 321, in which, one of us (Mr. Justice Ajmal Mian) while sitting at Sind High Court at Karachi after reviewing the case-law on the question of admission observed as follows:-

"Page 335 (G)-In my view, the above rulings have no relevancy to- the interested case as the insurance policies according to my finding referred to hereinabove were valid and, therefore, the defendants did dot admit their liability under a mistake of law or fact nor the instant case involves enforcement 'of an illegal contract on the basis of doctrine of estoppel.

The defendant's witness was put in cross-examination the relevant documents to show that the defendants admitted their liability and therefore, the last case referred to hereinabove, namely, A I R 1946 l.ah. 65 has no application to the instant case.

(ii) Ahmed Khan v. Rasul Shah and others P L D 1975 S C 311. In the above case, the Honourable Supreme Court while dismissing an appeal referred to the question of admission and observed that admission of facts are only relevant and are not con clusive and, therefore, it can be shown to he wrong. It was also pointed out that Evidence Act expressly provides that admissions are not conclusive proof of the matter admitted and that any admission, which is wrong in point of fact or is made in ignorance of legal right has no binding effect on the person making it.

On the other hand Mr. Khalid Malik, learned counsel for the respon dent No. 1 has urged that defendant No. 1's reply Exh. D;3 does not contain au unconditional admission and, therefore, is not binding and is not conclusive. Both the learned counsel have referred to section 31 of the Evidence Act, which provides that admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained.

8. It was also contended by Mr. Khalid Malik, Advocate that since the copy of the pronote was not forwarded with Exh. P/6, there' could not have been any admission of the execution of a document, which was not before defendant No. 1. He has also referred to the evidence of the handwriting expert produced by defendant No. 1, namely, D. W. 2 Zaka A. Malik and the testimony of the employees of defendant No. 1, namely, D. W. 4 Seyed Ghulam Rasool and D. W.-5 Mir Khuda Dad Khan to demonstrate that factually the pronote was not executed by defendant No. 1.

Mr. Basharatullah, Advocate has also referred to sections 73 of the Evidence Act which empowers the Court to compare the disputed signature with the proved one in order to arrive at a conclusion. Reliance has also been placed on the case of Messrs Muhammad Yusuf 1qbal Ahmed v. Ivth Sind Labour Court, Karachi and another (P L D 1977 Kar. 711) in which, a learned Single Judge while hearing a constitutional petition against the order of a Labour Court referred to the opinion formed by the Junior Labour Court as to the genuineness of signature on a resignation after comparison of the disputed signature with the admitted one.

9. It will suffice to observe that under section 73 of the Evidence Act, a Court is competent to compare the disputed signature with the admitted signature in order to arrive at a conclusion, but at the same time, it 'is desirable to obtain the assistance of expert in this behalf. we are inclined to hold that though there is no ocular direct evidence as to the execution of the pronote, but the above reproduced reply of defendant No. I Exh. D/3 coupled with the other evidence on record referred to hereinabove, establishes the execution of the pronote by defendant No. 1.

We may also observe that it was vehemently urged by Mr. Khalid Malik, learned counsel for the respondent No. 1 that the above reply was based upon a mistake of fact and, therefore, it cannot be considered as admission. In this regard, he has referred to the evidence of defendant No. 1 and D. W.-6 Muhammad Afzal scribe of the reply. However, w are of the view that as regards the factum that there was a pronote execute of a sum of Rs. 2.48,8r,9 there is unqualified and unambiguous admission in the above reproduced reply, but there is no admission as to the receipt of consideration. On the contrary, it was stated in the said reply that pronote was executed in receipt of a land transaction and the cash amount was paid in lump sum. We, therefore, hold that the finding of the learned Trial Court that the execution of the pronote was not established, i contrary to the evidence on record and contrary to law.

10. This leads us to the question whether the payment of consideratio has been proved for the executor, of the pronote. There is a presumption in favour of consideration under s ction I18 (u) of the Negotiable Instruments Act, which inter alia, provides that until contrary is proved, there shall be presumption that every Negotiable Instrument was made or draw for consideration and that every such instrument when it has been accepted indorsed, negotiated or transferred, was accepted, indorsed, negotiated o transferred for consideration. The above section provides a rebut table presumption, which can be rebutted by a defendant. In this regard, reference may also be made to para-379 of the Halsbury's Laws of England Fourth Edition, Volum 1V, which reads as follows:-

"379. Presumption of consideration

It has been already stated that bills of exchange and promissory notes, unlike other forms of simple contract, are presumed to stand upon the basis of a valuable consideration.

Not only is this so in the case of the immediate parties to the bill or note, but it is so also in the case of those who become parties to it subsequently by indorsement, for every party whose signature appears on a bill is prima facie deemed to have become a party thereto for value.

The effect of the presumption, therefore, is that it shifts the burden of proof from the "shoulders of the plaintiff who relies upon the instrument to those of the defendant who impugns it".

The question, therefore, in issue is as to whether defendant No. 1 succeeded in rebutting the presumption. Mr. Basharatullah, learned counsel for the appellant has vehemently contended that it was incumbent upon the defendant No. I to have produced the evidence to show that there was factually any land transaction in respect of which, the pronote was given by the defendant No. 1 and further that factually the payment was made in respect of the amount of the pronote against the receipt before a 1st Class Magistrate as averred by the defendant No. 1 in his above reply Exh. D/3.

On the other hand Mr, Khalid Malik, Advocate has vehemently urged that the plaintiff after having averred in the plaint that the pronote as executed on payment of consideration bad taken burden upon himself to prove the factum of payment of consideration by defendant No. 2 to defendant No. 1. In furtherance of his above submission, he has also referred to the above-quoted statement of P. W. 2 Agha Ghulam Ali (defendant No. 3 and the husband of defendant No. 2), which according to him belies the factum of payment of consideration. Mr. Khalid Malik, Advocate in support of his above submission has referred to the following cases:-

(i) Syed Hider Aabdi v. Syed Javed Aabdi N L R 1980 U C 353, in which, a learned Single Judge of the Lahore High Court sitting at Baghdad -ul-Jadid held that in a suit based on a negotiable instru ment, defendant is competent to take alternate plea as to the execution and the payment of consideration.

(ii) Ali Muhammad and 2 others v. Ghulam and another P L D 1983 Kar. 99. In the above case, a learned Single Judge of the Sind High Court while construing section 114 read with section 101 of the Evidence Act held that the presumption attached to a pronote can be rebutted by sufficient evidence and upon such evidence produced, the burden is shifted on the plaintiff.

(iii) Salar Abdur Rauf v. Mst. Barkat Bibi 1973 S C M R 332, in which, the facts were that a suit for the recovery of Rs. 10,208 was filed on the basis of a pronote which was dismissed by the Trial Court on the ground that the consideration was not proved. Upon appeal by the plaintiff, the learned Additional District Judge, Peshawar on the basis of the provisions of section 118 of the Negotiable Instruments Act, 1881, reversed the judgment of the Trial Court and decreed the plaintiff's claim by holding that on the proof of the execution of the pronote. it must be presumed to be for consideration unless there was evidence to the contrary to displace the presumption. On further appeal, a learned Single Judge of the Peshawar High Court set aside the judgment of the learned Additional District Judge and restored the judgment of the Trial Court. The Honourable Supreme Court of Pakistan while declining leave to appeal against the above order observed as follows:-

"The petitioner never objected to the first part of the issue and having accepted the burden of proof proceeded to discharge it by examining the scribe and two attesting witnesses who testified not only the execution-of the pronote but the actual passing of the consideration at the time of its execution. The evidence of Hazrat Shah and Abdul Qayyum is that the amount was laid on the table of the scribe who handed the same to Fingut. But Ghulam Muhammad when examined contradicted the above two witnesses in that he denied categorically that any amount was paid in his presence, or through him, and went on to say that Fingut was not known to him before.

Another remarkable fact in this case is that the petitioner initially instituted the suit in forma pauperis. It was only after his prayer to sue as a pauper was refused that he paid the requisite fee. It is also in evidence that be is a man of no ostensible means, he has no bank account and would eke out a living by working as auctioneer of the Rehabilitation Department on a commission which never exceeded Rs. 5 per thousand. But on his own admission even that source of meager income had dried up before the execution of the pronote. As against this, it is admitted by him that Fingut was owner of considerable property. Why of all the persons Fingut should choose the petitioner as his financier is beyond one's com prehension. The fact that the petitioner did not sue Fingut during his lifetime is also a very significant factor in the case. In view of these extraordinary circumstances coupled with the infirmities in the evidence adduced by the petitioner, we consider his suit was rightly dismissed." .

(iv) Muhammad Hassan Ashraf v. Shakil Ahmad 1973 S C M R 595. In the above case, the facts were that the respondent filed a suit for the recovery of Rs. 5,000 on a pronote. The appellant resisted the above suit on the ground that he had received no consideration and the pronote was executed at the police station under threat of criminal prosecution. However the trial Court decreed the suit. Upon an appeal, the District Judge set aside the judgment and decree of the trial Court and dismissed the suit. On a second appeal, the High Court set aside the judgment of the First Appellate Court and restored the decree of the trial Court. The Honourable Supreme Court allowed the appeal and restored the judgment and decree of the District Judge dismissing the respondent's suit and while allowing the appeal, made the following observation :-

The defendant has denied the payment of the loan, and this has received ample support not only from the surrounding circumstances of the case but also from the plaintiff's own statements that there is no receipt for the loans and that at the time of the execution of the promissory note nothing was advanced in cash by the High Court in second appeal..

The appellant has further contended that nevertheless he is entitled to rely upon the loans advanced to the defendant on earlier occasions as consideration for the promissory note in question, and in support of this contention he has relied on the case of Ramant Mohan Bhattacharjee v. Surjya Aumar Dhar and another A I R 1943 Cal. 22. In the case under report the defendant had admitted in his written statement the receipt of a certain sum of money in 1925 i.e., about 8 years before the date of the promissory note in question, but pleaded that this payment was on some other account. The defen dant's explanation that the payment had been received by him on some other account was however rejected. 1n these circumstances it was held that when the defendant himself had placed sufficient materials before the Court which enabled it to say that the payment of 1925 constituted the real consideration for the promissory notes in question, the Court should have decreed the plaintiff's claim even though it had found that there was no contemporaneous payment of the consideration at the execution of the promissory notes. It will thus be seen that the facts in the case under report were entirely different from the facts of the case before us. As we have already noticed, the plaintiff in the present case has not only admitted that there was no contemporaneous payment of consideration at the execution of the promissory note but also has failed to prove that he was able to pay the loans or that be had in fact paid the loans on earlier occasions. The defendant had categorically stated that the plaintiff never advanced any loan to him and he relied on the ambient circumstances in support of his assertion."

In this regard, the following cases may also be referred :-

(i) L. Ram Nath and another v. Lall Ram Chandra Mal A I R 1935 All. 154, in which the facts were that the plaintiff filed a suit for a pro missory rote of Rs. 2,000. The defendant admitted the execution of the promissory note and the receipt executed, but denied the factum that he received the loan of Rs. 2,000. The plaintiff failed to prove the consideration and the defendant also failed to prove the allegation made by him. It was held that in view of section 118(a) of the Negotiable Instruments Act, the presumption was in favour of the plaintiff for consideration.

(ii) Ramani Mohn Bhattacharjee v. Surjya Kumar Dhar and another A I R 1943 Cal. 22. In the above case, the facts were that the plaintiff filed two suits on a pronote of Rs. 2,000 and Rs. 2,400. The defendant pleaded want of consideration, which he succeeded to establish. However, at the same time he admitted that he had received the payment prior to the date of pronote. A. D. B. of the Calcutta High Court while hearing second appeals arising out of the two suits, remanded the case to the trial Court and observed while construing section 118(a) of the Negotiable - Instruments Act that it does not limit the presumption only to cases of consideration as stated in the negotiable instrument, but the words -for consideration" as used in the above clause (a) are quite general and there is no difficult in applying them in their full literal sense. It was also observed that the plaintiff was entitled to take advantage of the defendant's admission of the receipt of cash amount prior to the execution of the pro missory note.

(iii) Tarmahomed Haji Abdul Rehman v. Tyeb Ibrahim Bharamchari A I R 1949 Bom. 257, in which, a D. B. of the Bombay High Court while construing section 118 of the Negotiable Instruments Act observed that the above section raises a statutory presumption in favour of there being consideration for every negotiable instrument. It was further observed that if a particular consideration is mentioned in the negotiable instrument, which the Court finds to be false and some other consideration is set up, the Court is to take into consideration the above factor in deciding whether the defendant had discharged the burden cast upon him by section 1.18. It was further held that the mere fact that the consideration mentioned in the negotiable instrument turns out to be wrongly described does not repute. the presumption under section 118 and the burden still lies on the defendant to satisfy the Court that there was no consideration for the instrument.

(iv) Sundar Singh v. Khushi Ram and another A I R 1927 Lab. 864. In the above case, a learned Single Judge of the Lahore High Court while accepting a revision against the decree passed by the Small Causes Court Judge at Amritas, held that where in a suit of a pronote the plaintiff sets up different - stories as to the consideration at different stages. The burden of proving consideration shifts on him. It was also held that there is a legal presumption under section 118 that an indorsement on a promissory note is to be presumed to be for valuable consideration.

(v) Bishambar Dos v. Ismail and others A I R 1933 Lah. 1029, in which, a D. B. of the Lahore High Court while maintaining judgment/ decree of the trial Court dismissing the appellant's suit based on a promissory note observed as follows :-

These accounts books are not forthcoming and we have got only entries of these amounts purporting to have been made on the debit side while the entry about the promissory note in suit is on the credit side. It would have greatly strengthened the case for the plaintiff if he had produced the account book dealing with the period when these two items of Rs. 1,360 and Rs. 1,800 had, according to him, been advanced to Muhammad Bakhsh. I may also note here that the entries about Rs. 1,360 and Rs. 1,800 are silent about interest.

Having regard, therefore to the evidence on the record it is extremely doubtful whether a Court of justice can hold that the plaintiff has proved satisfactorily that the thumb-impression on the promissory note in suit was a genuine thumb-impression of Muhammad Bakhsh and, even assuming for the sake of argument that the learned trial Judge was right in holding that Muhammad Bakhsh had been some how tricked to put his thumb-impression on the promissory note in question the burden of proving want of consideration has been amply discharged by the defendants. In discharging the burden of proof, it is not always necessary for the defendants to prove want of consideration by producing definite evidence on their own behalf. It is open to them to rely upon the facts and circumstances of the case and also to refer to the flaws in the evidence of the plaintiff himself and then to argue that on the record of the case as it stands, the burden has been discharged by them. There are a number of authorities on this point and it is not necessary to consider them for the purposes of this appeal. Whether a party had discharged the burden of proof laid upon him is a question for the Court to decide and each case depends upon its own peculiar facts and circumstances."

(vi) Mt. Nando v. Mi. Dulara A I R 1933 Oudh 394. In the above case, the plaintiff filed a suit on the basis of pronote purported to have been executed by the defendant. The defendant denied having borrowed any money from the plaintiff, but the learned Judge of the Small Causes Court decreed the suit. Upon revision, a Judicial Commissioner of the Oudh Chief Court held that it was for the plaintiff who alleged that the defendant had executed the pronote in suit, not only to prove the execution but also the passing of consideration.

11. We are inclined to hold that in a suit based on a pronote, once plaintiff succeeds in proving the execution of the pronote, the burden shift on the defendant to prove want of consideration in view of the presumption provided under section 118(a) of the Negotiable Instruments Act. We are P also inclined to hold that this burden can be discharged either by leading evidence himself or by relying upon evidence of the plaintiff on record. which may be contrary to the presumption in favour of consideration. The Hon'ble Supreme Court of Pakistan in the above-cited case reported in 1973 S C M R 595 has clearly inter alia laid down that a defendant may rely upon the circumstances of the case and also plaintiff's own statement as regards the consideration.

12. In the instant case, the defendant No. 1 on oath has stated that he has not received any consideration. The plaintiff's above witness P. W. 2 Agba Ghulam Ali (defendant No. 3 and the husband of defendant No. 2 in whose favour the pronote was executed by the defendant No. 1), as pointed out hereinabove, in his examination-in-chief stated that the pronote was executed in his presence for consideration but in the cross-examination, he resiled from the above statement and stated as reproduced hereinabove that the pronote was not signed before him and that "it is possible that the currency note might not have been passed by my wife to Mir Qadir Bakhsh and from the plaintiff to Fatima Gut my wife." As observed hereinabove, that the only witness as to the payment of considera tion was the above P. W. 2 Agha Ghulam Ali (defendant No. 3) and if we exclude his testimony on account of his above statement in the cross-examination, there is nothing on record from the side of the plaintiff to prove the payment of consideration to defendant No. 1.

We are inclined to hold that in view of the statement of defendant No. 1 on oath that he had not received the above sum of Rs. 2,48,n89 and because of the above admission of P. W. 2 (defendant No. 3), who was not merely an ordinary witness, but also the husband of defendant No. who had allegedly paid the above amount to defendant No. 1, the burden was shifted on the plaintiff to have brought on record some evidence to show that factually the above amount was paid. There is no evidence from the side of the plaintiff as to the payment of consideration, though in para. I of plaint he has averred that the consideration was paid in the present of the two attesting witnesses. The least which he could have done w to produce the defendant No. 2, wife of P. W 2 (defendant No. 2) or a attesting witness before whom defendant No. 2 paid consideration to defendant No. 1. The amount involved is not few thousands but it is about two lacs and fifty thousand. The plaintiff has apparently avoided the production of defendant No. 2 as a witness, as she might not have withstood the cross-examination and might not have been able to prove the means source from where she got the above sum of Rs. 2,48,899 for payment t defendant No. 1. Exh. D/3, the reply dated 31st August, 1963 to th plaintiff's notice Exh. P/6, dated 27th August, 1963 does not contain any admission as to the receipt of the cash consideration from defendant No. 2. On the contrary, according to the above reply, no amount was due.

13. We might have remanded the above case for further evidence on the question of consideration, but since the parties have been litigating since 1953, it would not be just and proper to remand the case. It was the duty of the appellant to have brought some evidence on the above point after burden was shifted on him. We, therefore, maintain the judgment and decree of the trial Court but for different reasons. The appeal is, therefore, dismissed with no orders of to costs.

A. A. Appeal dismissed.

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