قانون اور مساوات نے لاپرواہی میں مدد نہیں کی اور اس لیے قانون کو اپنا کام کرنا چاہیے ، اور اگر کوئی فریق طویل عرصے تک پیش نہیں ہوا تو اس کے خلاف......

 2020 C L C 1950

W.P. No.32414 of 2015

Mst. BALQEES BEGUM Versus ADDITIONAL DISTRICT JUDGE and others----

قانون اور مساوات نے لاپرواہی میں مدد نہیں کی اور اس لیے قانون کو اپنا کام کرنا چاہیے ، اور اگر کوئی فریق طویل عرصے تک پیش نہیں ہوا تو اس کے خلاف کارروائی کی جانی چاہیے ۔
بنیادی اور ثانوی ثبوت-دستاویزات کی پیش کش-ایسے معاملات جن میں دستاویز سے متعلق ثانوی ثبوت دیا جاسکتا ہے - فن کی نوعیت اور دائرہ کار ۔ قانون شہادت ، 1984 کی 76 (ج)-- اصل دستاویز ، اگر یہ موجود تھی اور دستیاب تھی ، تو وہی بہترین ثبوت ہونے کی وجہ سے ، پیش کرنا ضروری ہے ۔ اس طرح کی دستاویز ، اگر اسے اس کے نقصان کی وجہ سے پیش نہیں کیا جا سکتا تھا ، تو ثانوی ثبوت قابل قبول تھا --اس اصول کا استدلال یہ تھا کہ جب کوئی شخص اعلی ثبوت کھو دیتا ہے ، تو ایسا شخص اپنی طاقت میں اگلا بہترین ثبوت پیش کر سکتا ہے - - اس لیے جب تک اعلی یا اعلی ثبوت کسی شخص کے قبضے میں تھا ، یا اس شخص کے پاس پہنچ سکتا ہے ، تب تک اس کے سلسلے میں کوئی کمتر ثبوت نہیں دیا جا سکتا - قانون شہادت 1984 کا آرٹیکل 76 (سی) صرف اس شخص کے تحفظ کے لیے بنایا گیا تھا جو اپنی بہترین کوششوں کے باوجود اپنے قابو سے باہر حالات سے عدالت کے سامنے بنیادی ثبوت پیش کرنے کے قابل نہیں تھا ۔ قانون شہادت 1984 کے آرٹیکل 76 (سی) کا مقصد اس شخص کے فائدے کے لیے استعمال کرنا نہیں تھا جو جان بوجھ کر یا مذموم ارادوں سے ایسی دستاویز پیش کرنے سے انکار کرتا ہے جو اس کے قبضے ، طاقت یا کنٹرول میں ہو ۔ - ثانوی ثبوت پیش کرنے والے فریق کو اس طرح کے دستاویز کے وجود اور عمل کو براہ راست اگر ممکن ہو یا ممکنہ طور پر جہاں ممکن نہ ہو ثابت کرنا چاہیے اور پھر مخالف کے اعتراف سے یا اس ثبوت سے کہ یہ مستعدی سے تلاشی کے بعد نہیں مل سکا ، اس کے نقصان کو ثابت کرنا چاہیے ۔ ثانوی ثبوت پیش کرنے کے لیے ضروری تلاش کی استعداد عدالت کے لیے ابتدائی سوال تھا جو خود دستاویز کی نوعیت ، اس کی تحویل اور عدالت کے سامنے مخصوص معاملے کے آس پاس کے تمام حالات کے مطابق مختلف ہوتا ۔ --تاہم ، پارٹی کے لیے یہ ضروری نہیں تھا کہ وہ اس طرح کے نقصان کا صحیح طریقہ اور وقت دکھائے یا ثابت کرے ۔

--Law and equity did not assist carelessness and therefore law must take its course, and where a party did not appear for a long period of time, same must be proceeded against ex parte.

Primary and secondary evidence---Production of documents---Cases in which secondary evidence relating to document may be given---Nature and scope of Art. 76(c) of Qanun-e-Shahadat, 1984---Original document, if it existed and was available, then same being the best evidence, must be produced ---- Such document, if it could not be produced due its loss, then secondary evidence was admissible --- Rationale of such principle was when a person loses the higher proof, then such person may offer the next best proof in his / her power---So long as higher or superior evidence was within possession of a person, or may be reached by such person, then no inferior proof in relation to the same may be given---Article 76(c) of the Qanun-e-Shahadat, 1984 was designed only for protection of person who in spite of his / her best efforts was unable from circumstances beyond his / her control able to place before the court primary evidence as required by law---Article 76(c) of Qanun-e-Shahadat, 1984 was not intended to be used for benefit of person who deliberately or with sinister motives refused to produce document which was in his / her possession, power or control---Party tendering secondary evidence must prove existence and execution of such document directly if possible or presumptively where not and then establish its loss either by admission of the adversary or by proof that it could not be found after diligent search---Sufficiency of search necessary to let in secondary evidence was preliminary question for a court which would vary according to nature of document itself, the custody it was in, and all surrounding circumstances of particular matter before a court---However, it was not necessary for party to show or prove exact mode and time of such loss.

JUDGMENT

.----This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 is of the plaintiff, and arises from her suit seeking decree for possession of the land belonging to the defendants, respondents Nos. 3 to 8 herein, who allegedly executed an agreement, dated 21st June, 1993, to sell it in favour of the plaintiff for a sum of Rs.136,688/- against a down payment of Rs.85,500/- vide receipt of even date. Claim of the plaintiff for possession of the land through specific performance of the said agreement was traversed by the defendants. The rival stances canvassed by the parties to the suit led the Trial Court to frame issues and invite evidence thereon. At the trial, the plaintiff filed an application under Article 76 of the Qanun-e-Shahadat, 1984 seeking permission to produce secondary evidence in respect of agreement to sell dated 21st June, 1993 and receipt of payment of Rs.85,500/- on the plea that they had been lost; which was resisted by the defendants. This application did not find favour with the Trial Court and was dismissed vide order dated 22nd July, 2013 on the ground that she had failed to prove as to how and when the documents were misplaced and what efforts were made to trace out the same. The plaintiff thereupon filed an application under Section 115, C.P.C. before the Addl. District Judge, Jaranwala and sought revision of the order dated 22nd July, 2013 of the Trial Court. The Revisional Court concurring with the reasoning of the Trial Court declined the leave to produce secondary evidence through order dated 19th September, 2015.

2. Impeaching the orders of the courts below, it is contended on behalf of the plaintiff that refusal to grant permission for producing secondary evidence in relation to agreement to sell and receipt dated 21st June, 1993 was not only contrary to the provisions of Article 76 of the Qanun-e-Shahadat, 1984 and the principle settled by the superior Courts but was also result of mis-reading of the contents of the application filed by the plaintiff. Elaborating this argument, it was submitted that since the plaintiff had stated in her application that the original of the agreement to sell and receipt were in the possession of her predecessor, namely, Haji Noor Muhammad who died on 12th September, 2006 and after that the same were misplaced/lost and could not be found despite much effort, the burden was on her to prove this assertion. The Trial Court was, therefore, required to grant opportunity to the plaintiff to produce evidence in respect of loss of original documents, which was not given, so, the courts below could not conclude that the plaintiff had failed to prove that the original documents were lost and they misdirected themselves by declining the permission to produce secondary evidence.

3. On the other hand, name of the defendants' counsel is printed in the cause list and despite this fact neither the defendants nor their counsel has turned up to oppose this petition. It is to be noted that this Court did not stay the proceedings of the suit but the Trial Court nevertheless without any cause adjourned the case sine die. In these circumstances particularly as this petition has been pending for the last more than five years, adjournment to procure attendance of the dormant and carefree defendants would not serve interest of justice. Since equity does not assist carelessness, the law must take its course. The defendants are, therefore, proceeded against ex-parte.

4. After the hearing, I find that the grouse made by the plaintiff is well founded, arguments canvassed on her behalf have weight and thus am persuaded to approve them. This is the case where the plaintiff wants to produce secondary evidence in respect of agreement to sell dated 21st June, 1993 and receipt of payment of Rs.85,500/- of even date with the plea that original of the said documents was in possession of her predecessor, namely, Haji Noor Ahmad who died on 12th September, 2006 and after that the same were lost and could not be traced despite hectic efforts made by her. It is to be noted that defendants Nos.1 to 3, 5 and 6 have admitted the execution of documents whereas the defendant No.4 has denied them. Now the question which falls for determination is as to how in the given circumstances the plaintiff could be allowed to give secondary evidence of the lost documents. The principle is that so long as the original document exists and is available, it being the best evidence, must be produced. If it cannot be had on account of its loss, secondary evidence is admissible. The rationale of this principle is that when a person losses the higher proof, it may offer the next best in its power. It does not mean that person's rights are to be sacrificed because it cannot guard against events beyond its control. It only means that, so long as the higher or superior evidence is within possession of a person or may be reached by it, it shall give no inferior proof in relation to that.

5. Clause (c) of Article 76 of the Qanun-e-Shahadat, 1984 provides for permitting the parties to adduce secondary evidence of the existence, condition or contents of a document when the original has been lost. However, such a course is subject to certain limitations as it is not intended to be utilized for the benefit of a person who deliberately or with sinister motives refuses to produce in Court a document which is in its possession, power or control. It is designed only for the protection of a person who, in spite of best efforts, is unable from circumstances beyond its control to place before the Court primary evidence as required by law1. Thus the party tendering secondary evidence must prove the existence and execution of the document directly, if possible, or presumptively, where not and then establish its loss, either by the admission of the adversary or by proof that it cannot be found after diligent search2. Needless to mention here that the sufficiency of the search necessary to let in secondary evidence is a preliminary question for the Court, which will vary according to the nature of the document itself, the custody it is in, and indeed all the surrounding circumstances of the particular matter before the Court3. However, it is not necessary for the party to show or prove the exact mode and time of the loss4.

6. In the present case, it appears that both the Courts below were conscious of the fact that the plaintiff per above stated position of law had to prove as to how and when the original documents were lost and what efforts were made by her to find them. It is astonishing to note that the Trial Court, on the one hand, in its judgment referred the case of Mukhtar Ahmad5 which stated that proof of loss of document is condition precedent to permission to lead secondary evidence and if the loss is not proved secondary evidence would become valueless whereas, on the other hand, without giving opportunity to the plaintiff to prove the loss of document by leading evidence, declined her request to produce secondary evidence with the observation that she had failed to prove as to how and when the documents were lost. This was not proper approach and thus, resulted into miscarriage of justice. The Trial Court ought to have granted opportunity to the plaintiff to lead some positive evidence so as to satisfy the preconditions for giving secondary evidence relating to the agreement to sell dated 21st June, 1993 and the receipt of even date and then exercised its discretion in such a way so that it could be inferred that justice had been done. Now, in the attending circumstances, the appropriate course of action is to follow the modus operandi adopted in the case of Sardar Bakhsh6 wherein the Hon'ble Supreme Court of Pakistan examining somewhat similar facts approved the direction given by the High Court whereby Trial Court was asked to treat the application for production of secondary evidence as pending; to record evidence of the parties thereon; and, to decide the same on the basis of evidence.

7. In the result this petition is accepted and it is hereby declared that orders of the courts below have been passed without lawful authority and are of no legal effect and thus the same are set aside. As a consequence, the application of the plaintiff under Article 76 of the Qanun-e-Shahadat, 1984 shall be deemed to be pending before the Trial Court which shall decide the same afresh after allowing the plaintiff to produce evidence thereon.