2002 PLP 595 (CLD)

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑- ‑‑‑ Art. 119‑‑‑Burden of proof alleged that defendants had obtained their signatures on blank documents ‑‑‑ Plaintiffs had to prove such assertion through evidence. Ghulam Haider Alghazali for Petitioners. Syed Hamid Ali Shah for Respondents. This writ petition impugns the order, dated 8-9‑2001 passed by the learned Banking Court II, Lahore.

2. The facts leading up to the filing of this petition are relatively straightforward. The respondents Nos.1 and 2 have filed a suit against the petitioners, which is pending adjudication before the learned Banking Court. The plaintiffs (respondents Nos.1 and 2 herein) produced Khalid Masood Hashmi, an employee of the petitioner‑Bank, as P.W.1. The said witness produced on record Exh.D.I to Exh.D.8, which are documents executed by the plaintiffs in favour of the petitioner‑Bank in respect of facility availed by them from the petitioner‑Bank. Apart. from producing the aforesaid documents as Exh.D.1 to Exh.D.8, Masood Ahmed Hashmi P.W.1 was also cross‑examined by the petitioner‑Bank as well as the plaintiffs. Subsequently, Muhammad Parvez Malik respondent No.l appeared as P.W.2 in support of his case. In this testimony, he acknowledged the signatures on the document Exh.D.1 to Exh.D.8, but deposed the said documents were signed in blank.

3. Since P.W.1 was a witness to the said documents, an application was moved on behalf of the petitioner‑Bank to have him summoned for the purpose of further cross‑examination by the petitioner‑Bank in order to ascertain if the documents Exh.D.1 to Exh.D.8 were duly filled in or were blank when signed. This application has been dismissed by the learned Banking Court vide impugned order, dated 8‑9‑2001.

4. Learned counsel for the respondents has argued that the petitioners application has been rightly dismissed because there would be no end to the testimony of P.W.1 if the parties were repeatedly allowed to summon him for the purpose of cross‑examination. This in fact, is also the reason given by the learned Banking Court for dismissing the petitioners' application.

5. Learned counsel for the respondents also argued that the respondents/plaintiffs had clearly averred in para. 15 of the plaint that the petitioners/defendants had obtained signatures of the plaintiffs/respondents on blank documents. On this basis, it was contended that the petitioners were fully aware of the case set up by the respondents/plaintiffs and should, therefore, have questioned P.W.1 in respect of the aforesaid assertion in the plaint. This argument, I am afraid, is not well founded. The plaint by itself does not prove the assertions made therein. The contents of the plaint have to be proved through testimony given on oath subject to cross‑examination by the other side. It was for the respondents/plaintiffs to prove through evidence the assertion that their signatures had been obtained on blank documents.

6. The only suggestion put to P.W.1 in respect of the above referred contents of paragraph 15 of the plaint was in respect of the memorandum of deposit of title deed Exh.D.6. The said witness expressly denied the suggestion that the said document was incomplete when signatures were obtained on it. No such suggestion was given in respect of the other exhibited documents. As such there was no occasion for the petitioners/defendants to put any question to P.W.1 on the issue as to whether or not the documents Exh.D.I to Exh.D.8 were incomplete. The occasion for such question only arose at a subsequent date when Muhammad Pervez Malik respondent/plaintiff appeared as P.W.2. It was during his evidence that he testified that the above‑referred documents were signed by him while the same were blank. In this sequence of events, it was the right of the petitioners/defendants to summon Khalid Masood Hashmi, who was a witness to the documents, to prove that the documents had not been sighed in blank. In the circumstances, I do not see any justification for denying the petitioners/defendants the right to question a material witness in respect of an important aspect of the defence to the suit asserted by the petitioners/defendants.

7. Otherwise too, in the above circumstances, there appears to be no bar on the petitioners/defendants producing Khalid Masood Hashmi as their witness even though the said witness has earlier appeared as P.W.1: This legal position is supported by the judgment of the Honourable Supreme Court in the case of Ahsan Ilahi v. Messrs Habib Bank Ltd. (1981 r SCMR 336). In the circumstances, the petitioners/defendants shall be entitled to produce the aforesaid witness on 14‑1‑2002 which is the next date of hearing before the learned Banking Court. If for any reason whatsoever the testimony of Khalid Masood Hashmi cannot be recorded or completed on 14‑1‑2002, the learned Banking Court shall try and accommodate the recording of testimony on the following day and, if necessary, from day to day.

8. This petition, in the circumstances, is disposed of with the above directions. S.A.K./B‑65/L Order accordingly.