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Suit No. 320 of 1979, decided on 8th June, 1987.

‑‑‑S. 60(2)‑‑Transfer of Property Act (IV of 1882), S. 3‑‑Qanun‑e Shahadat Order (10 of 1984), Art. 79‑‑Execution of document, denial of‑‑Burden of proof of non‑execution on person who denies‑‑Provision of S. 60(2), Registration Act, 1908 raises presumption of execution of document‑‑Burden of proof of non‑execution of document would lie on the person denying execution thereof‑‑For validity of instrument, attestation of two or more witnesses would be necessary‑‑Mortgage bond was required to be attested by two witnesses‑‑Where a document was required by law to be attested, same, held, could not be used as evidence until one attesting witness at least, had been called for purpose of proof of its execution.‑‑[Burden of proof].

‑‑‑Contradictory statements by witnesses‑‑Effect‑‑Witness speaking deliberate lies to escape his liability‑‑Effect‑‑Where a witness had gone to the extent of denying his authenticated signature on the registered lease deed of his own house, such unbelievable statement made during cross‑examination, held, would expose such witness to be a perfect liar.

‑‑‑Art. 61‑‑Evidence of Handwriting Expert‑‑Signatures and thumb‑impressions, examination of‑‑Value of‑‑Comparison of disputed signatures of person with his specimen signatures alone, held, would be of use because such person could have consciously changed his specimen signatures from disputed signatures‑‑No evidence available on record to show in whose presence such specimen signatures or thumb‑impressions were taken‑‑Thumb‑impressions were not properly obtained being blurred and bearing double impression resulting in making same unfit for cross‑examination‑‑Where in spite of specimen impressions being blurred and double impressed, Handwriting Expert had come to conclusion that same were different from disputed thumb‑impressions and had given his opinion about the same, such opinion would cast serious doubts on the bona fide of test‑‑Finger prints though afford valuable evidence of identity but great caution must be exercised in arriving at a conclusion by comparison of thumb‑impressions and positive evidence of witnesses who were undoubtedly present and were eye‑witnesses to the transaction and evidence of witnesses should not be lightly brushed aside.

R. v. Abdul Hamid I L R 32 Cal. 759; Re: Godavarthy's case A I R 1960 Andh. Pra. 164 arid Public Prosecutor v. Gopal A I R 1941 Mad. 551 ref.

‑‑‑0. XXXIV, R. 1‑‑Sind Chief Court Rules (O.S.), Rr. 227 & 233‑‑Suit for recovery of bank loan‑‑Execution of mortgage deed proved to be valid and binding‑‑Effect‑‑Where mortgage deed executed by defendant against loan was proved to be validly executed and signed both by the executant and his surety, Court decreed the suit for recovery of specified loan amount.

Ibrahim Pishori for Plaintiff.

Defendant No.l (absent).

S.A. Manan for Defendant No. 2.

Date of hearing: 19th May, 1987.

This is a suit under Order 34, C.P.C read with Rules 227 and 233 of the Sind Chief Court Rules (0 . S .) .

2. The defendant No. 1 Mubarak Alam Syed opened loan account No. 229 with the plaintiff Habib Bank Limited at its K.D.A. Branch Karachi in his name. The defendant No. 1 was an officer in that branch of the bank. At the request of defendant No. 2, who is brother of defendant No. 1, the plaintiff agreed to allow the defendant No. 1 accommodation by way of loan to the extent of Rs.56,000 on the condition that the defendant No. 2 should create a first legal charge by way of registered mortgage as guarantor. Consequently against the security of a registered mortgage deed dated 18‑3‑1973 of plot of land bearing No. 406, Sheet No. K‑13‑B, measuring 154 square yards in Bihar Colony, Lyari Quarters Karachi together with the building constructed thereon, the plaintiff gave a loan of Rs.56,000 to the defendant No. 1 which was to be repaid in monthly installments of Rs.400 commencing from 18‑3‑1973. The interest was to be charged at 3 above the bank rate with a minimum of 9 per annum to be paid on or before 5th day of every month. The defendant No. 1 repaid in all Rs.7,200. The last payment 4f Rs.6,000 was made on 6‑2‑1974. On 4‑3‑1976 the defendant No. 1 wrote a letter acknowledging his liability and promising to pay the entire amount by the beginning of 1977. On 28‑2‑1979 a sum of Rs.1,07,203.35 was due from the defendants to the plaintiff hence the suit.

3. The defendant No. 1 filed a statement to the following effect:‑‑

"It is most respectfully submitted by the defendant No. 1 that he is prepared to pay the decretal amount in monthly instalment of Rs.2,000 to be deposited on or before 14th of each month in this Hon'ble Court since the defendant No. 1 is in service he cannot afford to pay more than the said amount.

It is therefore prayed that the said suit may be disposed of against defendant No. 1 accordingly.

Sd/‑

(Mubarak Alam Syed ) Defendant No. 1."

4. The defendant No. 2 contested the suit and filed a regular written statement wherein he denied to have requested the plaintiff bank to allow loan to his brother, the defendant No. 1 or to have stood surety for him. He has also denied to have guaranteed the repayment of loan by creating a legal charge by way of mortgaging his properly. He denied to have executed registered mortgage deed. He has alleged that the signature and thumb‑impression of the defendant on the said mortgage deed are forged. He has attached his specimen thumb‑impressions and signatures on a paper alongwith his written statement. He has admitted to have received a notice from the plaintiff and to have properly replied the same in the negative.

On the pleading of the parties the following issues were framed:‑‑

(1) Whether the registered mortgaged deed dated 18‑5‑1973 was not executed by the defendant No. 2

(2) Whether the mortgage created in favour of the plaintiff is not valid

5. My findings on both these issues are in the affirmative i.e. in the favour of the plaintiff for the following reasons:‑‑

The burden of proof of this issue was on the plaintiff. Section 60(2) of the Registration Act raises a presumption of execution of a document. The definition of word attested according to section. 3 of Transfer of Property Act is as under:‑‑

"Attested in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary."

According to this definition an attesting witness is a person' who in the presence of the executant of the document puts his signature or mark on it after he has seen the executant or someone by executant's directions signed or affixed his mark to it. For the validity of an instrument attestation of two or more witnesses is necessary. Section 59 of the Transfer of Property Act requires that a mortgage bond should be attested by two witnesses. According to section 68 of the' Evidence Act which is parallel to section 79 of Qanoon‑e‑Shahadatl Order 1984 if a document is required by law to be attested it shalll not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution.

6. The plaintiff has examined P. W. Zainuddin Assistant Vice‑President of the Bank. In 1973 he was working in the area office which was situated in K . D . A . Branch on the revolving duty. Upto July 1972 he was Manager of Habib Bank Limited, K.M.C. Branch. Defendant No. 1 Mubarak Alam Syed was working in K.M.C. Branch under him as an officer. He has claimed to be familiar with the signature of the defendant No. 1. He has also claimed to be familiar with the brother of defendant No. 2. He has stated that defendant No. 1 was given a loan on the security of defendant No. 2. He was also an attesting witness of mortgage deed. He has stated that defendant No. 1 as well as defendant No. 2 had signed on the mortgage deed exhibit 4/1 in his presence. He himself had also signed the same as an attesting witness. All these signatures were put in presence of Sub‑Registrar in his office and such a note was made by the Sub‑Registrar. This witness was cross‑examined at length by the advocate for the defendant but he could not shake his evidence in the least. Defendants have not established enmity or motive against him. Defendant No. 2 avoided to appear in presence of this witness before this Court. However, he was pressed by the Court to appear and the witness was asked if he could identify defendant No. 2. Thereupon the witness rightly identified the defendant No. 2 Akbar Alam. The mortgage deed also gets support from the letter exhibit 4/13 written by the defendant No. 2 Akbar Alam to Habib Bank Limited. The signature on this letter was not referred to the Hand‑writing Expert although defendant No. 2 had denied the same. Besides this the entries from the bank account, the notices and many other documents were produced by the plaintiff. The plaintiff also examined Rashid Hameed, another officer of Habib Bank Limited.

As against this defendant examined himself, as exhibit 4. He has produced the registered mortgage deed as exhibit 4/1 and has denied his signature as well as thumb‑impression on the same. He has also denied to have executed the said document or to have gone to the Registration Office for the said purpose. He was also confronted by plaintiff's counsel with P. T .I. and K . M. C . bills and the lease deed of the plot. He has gone to the extent of denying his signature on the registered lease deed of his own house and has alleged that his house was purchased by him from one Hamid Sajjad Hussain Jaffri for a sum of Rs.3,000 on a stamp paper of Rs.2. He was cross‑examined at length by the advocate for the plaintiff. From his cross‑examination it is quite clear that defendant No. 2 is speaking deliberate lies to escape his liability. As already pointed out by me he has gone to the extent of denying his authenticated signature on the registered lease deed of his own house. At one stage he says that he and his brother Mubarak Alam Syed had not gone to the office of the Registrar while later on he changes his statement and says that he does not know whether Mubarak Alam Syed had gone to the office of Registrar or not. He has admitted that his brother Mubarak Alam Syed was employed in the bank but has shown his ignorance about the length of his service in the said bank or about the place of residence in Karachi or the length of period for which he lived at Karachi. Besides this whereas he admits that his brother was married he shows ignorance as to when he was married or to whom he was married. He goes to the extent of denying that he attended the marriage or even his father had attended the marriage of the defendant No. 1. All these unbelievable statements made by the defendant No. 2 in his cross -examination expose him as a perfect liar. In the beginning, the Court had appointed one Mr. A.B. Chughtai to examine the disputed thumb‑impression and signature of the defendant No. 2 on the mortgage deed but he was discharged on his own request on 2‑5‑1982. On 17‑8‑1982 the Court appointed Director Forensic Expert to examine the disputed signature and thumb‑impression on the mortgage deed but the defendant's counsel did not pursue the same and did not deposit his fee etc. The advocate for defendant No. 2 tried to shift the blame for not pursuing the examination of document by Director Forensic Expert but in vain. I do not want to go deep into this controversy for the simple reason that it would lead us nowhere. Finally on the application of defendant No. 2 the Court appointed Mr. Shabbir Hussain Siddiqui as Hand‑writing Expert. An application for substitution of Hand‑writing Expert made by the defendant No. 2 was dismissed by this Court on 6‑4‑1986. The Court (Mr. Justice K.A. Ghani) had made it clear that the defendant No. 2 was not debarred from producing his own Hand‑writing Expert as a witness to be examined on his behalf, if otherwise permissible in the circumstances of the case. Consequently the defendant No. 2 privately obtained the services of Mr. Shabbir Hussain Siddiqui Hand‑writing Expert who examined the disputed thumb‑impression and hand‑writing with the specimen signature and thumb‑impression of the defendant No. 2‑ and expressed his opinion that the same did not resemble with each other. He has given his reasons for coming to the said conclusion.

I have perused the report and evidence of the Hand‑writing Expert. I am not in agreement with him at all. The comparison of the disputed signature of the defendant No. 2 with his specimen signatures alone would be of no use because the defendant No. 2 could have consciously changed his specimen signatures from the disputed signatures. Such a question was put to the Hand‑Writing Expert by the counsel for the plaintiff. He has admitted that the possibility of deliberate change in the signature of a person cannot be ruled out. Besides this there is nothing on exhibits 4/14 and 4/15 to show as to in whose presence these specimen signatures and thumb‑impressions were obtained. Definitely there is no mention that these specimen signature and thumb‑impressions were obtained in presence of the Court. Apart from that the specimen thumb‑impressions are not properly obtained. These are blurred and there is double impress which has resulted in making the thumb‑impressions unfit for examination which is also clear from enlarged photos of the thumb‑impression produced by the Hand‑writing Expert. To me it appears that the fact that in spite of these specimen thumb‑impressions being blurred and double impressed the Hand‑writing Expert has come to the conclusion that the same are different from the disputed thumb‑impressions when they were not for examination and has given his opinion about the same, casts serious doubts on the bona fides of the test. No doubt the plaintiff's counsel has not cross‑examined the expert on this point, but his omission to do so does not debar the Court from forming its opinion on such a glaring defect, which is evident on the face of the record.

7. Although finger prints afford valuable evidence of identity but great caution must be exercised in arriving at a conclusion by comparison of thumb‑impressions and the positive evidence of witnesses who were undoubtedly present and were eye‑witnesses to the transaction should not be lightly brushed aside. In this case there was diversity between the thumb‑impressions purported to have been taken on the original registered document as compared with the specimens of thumb‑impressions which were produced before a private expert, which specimen thumb‑impressions are of a suspicious nature. I have decided not to place reliance on the evidence of the Hand‑writing Expert which is based on such doubtful specimen thumb‑impressions. In the case of R.Vs. Abdul Hamid reported in I.L.R. 32 Cal. 759 it was held that great caution must be exercised in arriving at a conclusion by comparison of thumb‑impressions and the positive evidence of the witnesses who were undoubtedly present and were eye‑witnesses should not be lightly brushed aside. In this ruling the opinion of expert are rejected as thumb‑impression were blurred. In another case of re God avarthy reported in A.I.R. 1960 Andhra Pardesh 164 it was held that it was the duty of the Court to scrutinise the evidence of the expert or make the comparison personally. In an earlier Madras case, a Magistrate not being satisfied with the opinion of a finger‑print expert gave the accused the benefit of doubt. It was held that the Court was not bound to accept the evidence of an expert. even though there were no special reasons for not accepting it.‑ It was proper for the Magistrate to satisfy himself by personal examination of the finger‑prints even though he was not an expert. Reference was made to A.I.R. 1941 Mad. 551 (Public Prosecutor v. Gopal).

8. I am therefore, fully satisfied that the defendant No. 2 had signed and executed the mortgage deed in dispute which is legally, valid and binding upon defendant No. 2.

These are the reasons for which I have decreed the Plaintiff's suit by my short order dated 19‑5‑1987.

A.A./H‑33/K Suit decreed.

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