2008 PLP 1653 (CLC)

RANA ZAHID MAHMOOD, J.

Present is constitutional petition filed by Muhammad Nawaz and Muhammad Yousaf petitioners/defendants against the other passed by learned District Judge Narowal while dismissing the revision petition filed by the petitioners/defendants against the order dated 17-9-1998 passed by learned Senior Civil Judge, Narowal whereby he had exhibited two documents filed by respondents Nos.3 to 16 in their suit for declaration with injunction that they were the owners of land in dispute and Hibba Mutation No.559 dated 29-3-1968 was based upon fraud and was void and ineffective against their rights. In the suit respondents also took up the plea that Abdul Salam respondent No.9 one of the plaintiffs, at the relevant time of alleged Hibba mutation was posted in Quetta in Pakistan Army and was on duty while Amjad Saeed his younger brother one of the plaintiffs in suit was minor who later on died during the pendency of the suit. During trial of the suit after evidence of the parties learned counsel for the respondents/plaintiffs in his statement without oath tendered in evidence original certificate issued by competent authority of Pakistan Army about the presence of Abdul Salam on duty at Quetta as Exh.P.6 and attested copy of register of leaves obtained by Abdul Salam as Exh.P.7 which was objected by learned counsel for the petitioners/defendants on the ground that since said two documents were not produced by the scribe of the documents, therefore could not be placed on record as exhibited documents. The objection of learned counsel for the petitioners/ defendants was however, overruled and rejected by learned Senior Civil Judge, Narowal vide order dated 17-9-1998 which was assailed before the learned District Judge Narowal through revision petition by the petitioners however, the revision petition was dismissed vide order dated 15-2-2000 passed by learned District Judge subject-matter of the present writ petition.

2. Learned counsel for the petitioners has submitted that firstly the evidence must be primary one, when it relates to documentary evidence and in case secondary evidence is to be led on documents then the scribe of the documents who prepared the same must be produced and submitted that two documents Exh.P6 and Exh.P7 were illegally admitted into evidence by learned trial Judge against which the revision petition was filed but the same was also illegally dismissed by learned District Judge. He submitted that since the original register of the leaves availed by Abdul Salam respondent No.9 was not produced therefore attested copy of the same could not be allowed to be tendered in evidence through the statement of learned counsel for the respondents/plaintiffs after the rebuttal evidence. Also submitted that Exh.P.6 is not original document and was a copy of the certificate about the presence of Abdul Salam respondent on duty at Quetta in Pakistan Army and submitted that as such the same could not be exhibited.

3. Learned counsel for the respondents has vehemently opposed the contentions and submitted with reference to Exh. P.6 that it is original certificate issued by Officer Commanding of the unit of Pakistan Army in which Abdul Salam respondent No.9 was serving at the relevant time and submitted that learned counsel for the petitioners/defendants is mistaken about the status of the documents in-question because it is original document duly signed and sealed by a competent authority i.e. Officer Commanding. Further submitted that Exh.P.7. is the attested copy of the register of leaves obtained by said respondent/plaintiff and is also signed and sealed by the Officer Commanding of the Unit concerned, therefore, submitted with reference to Articles 76 and 87 of Qanun-e-Shahadat Order 1984 that both the documents were admissible in evidence and there is no illegality committed by either of the Courts below. He submitted that there is concurrent findings on the subject and no interference either in law or on facts is made out by learned counsel for the petitioners. He also submitted that as per certificate the said respondent was on duty from 29-3-1968 till 13-8-1968 and had not availed any kind of leave during said period. He submitted that writ petition is without merit and is liable to be dismissed.

4. Arguments heard. Record perused and also impugned order. Learned District Judge, Narowal had taken into consideration vide impugned order that both the documents in-question were certified copies of public documents and as such, were admissible in evidence and it is important to mention that Article 87 is relevant Article on the subject which authorizes every public officer in whose custody public documents are kept in ordinary course of official duty/business and was authorized to issue a certificate about the authenticity of the document itself and even a photocopy of public document which was certified to be a true copy by officer concerned who had the custody of the original document with him was admissible in evidence and reference in the regard can be made to (2) of Article 87 of said Order. Article 85 of said order also classifies the public document and both the documents in-question Exh. P.6 and Exh.P.7 squarely fall within definition of public documents and as were certified in the shape of issuance of certificate in original by the Commanding Officer of the unit with his original signature with official stamp and seal on the same who maintained, said record as required under Article 85(4) of Qanun-e-Shahadat, therefore, the same could be tendered in evidence by learned counsel for the respondents/ plaintiffs in his statement before the learned trial Court after evidence of the parties. It may also be mentioned that since Abdul Salam respondent No.9/plaintiff had right to obtain copy of said record of Exh.P.6 and Exh.P.7 as presence of said respondent was a question in issue at the relevant time of execution of Hibba mutation who took up the plea in the suit that being employed in the Army and posted at Quetta he was not present for making Hibba mutation in favour of the respondents, therefore could obtain the certificates in-question and could produce the same in the trial Court. Article 88 of said Order caters the need for the same. Similarly Exh.P.7 is an attested copy of the register of leaves pertaining to Abdul Salam respondent No.9/plaintiff No.3 in the suit, which also bears original signature of the Commanding Officer with seal and official stamp. Reference in this regard can be made to Article 90 of the Qanun-e-Shahadat Order 1984 as well. Both the documents were rightly tendered in evidence and exhibited by learned trial Court vide order dated 17-9-1998 by rejecting the objection raised by the petitioner's counsel. Learned District Judge rejected the revision petition rightly upheld order passed by learned Senior Civil Judge. Both the orders are perfectly legal and no exception can be taken to the same writ petition is without merit and is therefore, dismissed. Parties to bear their own costs. M.H/M-305/L Petition dismissed.