1989 PLP 3387 (MLD)

2. The brief facts leading to the filing of the above revision are that the respondent filed the aforesaid suit for possession on the ground that she was the allottee of the quarter from the Karachi Development Authority and that on 24-10-1965 she alongwith~ her family members went to Hyderabad to see her relatives after locking the quarter and the house articles therein, but when she returned from Hyderabad on 5-11-1965, she found the applicant in possession, After that she lodged the criminal complaint which resulted into initiation of criminal proceeding in a criminal court. The above suit was resisted by the present applicant and inter alia it was pleaded that factually the respondent had abandoned the quarter and he was put into possession by the K.D.A. On the basis of the pleadings of the parties, the learned trial Court framed 7 issues.

3. In support of the suit, the respondent examined herself and produced certain documents including the allotment letter etc., whereas the applicant examined himself and one witness Abdul Waheed. He also produced certified copies of the following documents from the criminal Court's record:- (i) Judgment dated 11-1-1969 passed by the learned Additional Sessions Judge, Karachi in Criminal Appeal No.515/67 allowing the applicant's appeal 2tgainst his conviction recorded by the learned A.C.M. VI Karachi by his order dated 23-12-1967. (ii) Statement of one Abdul Rashid, Administrative Officer, K.D.A. (iii) Statement of Asghar Hussain Kizalbash, S.H.O., New Karachi Police Station; and (iv) An enquiry made by the North Karachi Police Station from the K.DA. as to the status of the quarter.

4. The learned trial Court after hearing the arguments of the learned counsel for the parties decreed the suit by the aforesaid judgment/decree dated 20-8-1977., It was held by the learned trial Court that certified copies of the statements of the witnesses filed by the applicant from the criminal case could not have been relied upon as a piece of evidence. The applicant being aggrieved by the above judgment/decree filed Civil Appeal No.283 of 1977, which was dismissed by the learned Vth Additional District Judge, Karachi by his above judgment/decree dated 27-8-1980, though he held that since the certified copies of the above documents were produced, they could be looked into. The applicant being aggrieved by the above two judgments/decrees has filed the present revision.

5. In support of the above revision Mr. Rehanul Hassan Farooqui, learned counsel for the applicant, has urged as follows:- (i) That the suit was bad for non-joinder of the K.D.A. (ii) That the case of the respondent that the applicant had broken open the lock between 24-10-1965 to 5-11-1965 and occupied the quarter unauthorizedly, was belied by the above certified copies of the documents coupled with the evidence of the applicant and, therefore, the two Courts below have acted illegally in decreeing the suit. (iii) That in view of the provisions of Sections 74, 77 to 80 of the repealed Evidence Act, the above certified copies of the documents were admissible pieces of evidence as they were certified copies of the public record.

6. Adverting to the first submission of Mr. Rehanul Hassan Farooqui that the suit was bad for non-joinder of the KD.A., it will suffice to observe that the respondent was not claiming any relief against the K.DA. The mere fact that she claimed to be the allottee of the KDA. would not make the K.DA. as a necessary party.

7. As regards the remaining submissions of the learned counsel for the applicant, it may be observed that he has referred to the above sections 74, 77 to 80 of the Evidence Act. It may be pointed out that section 74 defines public documents which include judicial proceeding; whereas Section 77 provides that certified copies of the public documents may be produced in proof of the contents thereof; whereas Section 78 provides presumption in relation to the public documents referred to in the above section. Additionally, section 79 provides presumption as to the genuineness of certified copies. It may further be noticed that Section 80 provides wherever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate or by any such officer as aforesaid, the Court shall presume:- that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken.

8. I am inclined to hold that the above provisions of the Evidence Act do not absolve a party of burden of proof in a civil case. In the instant case, the burden of proof that factually the quarter was abandoned by the respondent and the applicant was put into possession by the K.D.A.

was on him, which in my view has rightly been held by the two Courts below that the applicant has failed to discharge. The statements of the witnesses recorded in a criminal proceeding may be relevant in another proceeding between the same parties for certain purposes but they cannot be used as a substantive piece of evidence in place of the production of the witnesses. Nothing was brought on record to indicate that Abdul Rashid, Administrative Officer K.D.A. or Asghar Hussain Kizalbash, S.H.O. New Karachi Police Station, were not alive or they could not have been summoned. Even the application for summoning the above witnesses was not filed by the applicant before the trial Court. I am, therefore, of the view that the learned Appellate Court has rightly held that even if it could look into above statements, they do not prove the case of the applicant. If I were to agree with the contention of Mr. Rehanul Hassan Farooqui, it will have far-reaching effect. A party will be at liberty to produce certified copies of the statements of the witnesses recorded in a criminal proceeding for purpose of proving certain issues, the burden of proof which is on him. The concurrent finding of the two Courts below that factually the respondent was allottee of the quarter and that the applicant had unauthorizedly occupied the quarter, in my view is supported by evidence on record, which cannot be interfered with in this revision. The revision is dismissed with no order as to costs. M.A.K./S-401/K Revision dismissed.