2017 PLP 1221 (CLC)

MUHAMMAD SHERAZ KIANI, J.

The above captioned revision petition calls in question the validity and legality of the order passed by the learned Additional District Judge, Kotli, on 20.08.2016, whereby, the learned Court below has rejected the application for bringing certain documents on record.

2. Synthesized facts forming the background of the instant revision petition are that respondent Mehmood But filed two suits against the petitioner, Mohammad Zaman Tabassam, in the Court of learned Additional District Judge, Kotli one for recovery of Rs.5,80,000,00/- (5 Crore 80 lacs) allegedly he had given to the defendant petitioner, herein, as a loan and the second suit for specific performance in respect of land measuring 1 kanal, 18 marlas along-with house constructed thereupon situated in Village Samrot on the basis of mortgage dated 22.09.2011 and alternatively he prayed for recovery of rupees one crore from defendant/petitioner. Defendant/petitioner while putting set off claims in written statement claimed that he had received Rs.77792291/- from the plaintiff/respondent, however, he made extra payment of Rs.6874056/- and he also filed Suit No.87/12 against the respondent on 10.10.2012 for rendition of amount and made prayer therein that the additional amount he paid of Rs.6847056/- be recovered from the respondent, Mehmood Butt. During pendency of these suits an application was moved by the petitioner before the trial Court for permission to produce attested copies of account books pertaining to the payment of disputed amount as secondary evidence. It is stated in the application that the concerned accounts books were recovered/seized by the police in criminal case No.294/12 (registered at police station Kotli) and later on the original accounts books (Khatajat) were misplaced/lost somewhere. The application was resisted by the opposite side on the ground that when the original books are not available then their copies cannot be tendered in evidence. After hearing the learned counsel for the parties, the learned Court below disallowed the application for producing the copies of accounts, however, the rest of documents (certified copies of letters of Allied Bank and Habib Bank Limited Kotli) were allowed.

3. Raja Javaid Akhter, the learned counsel for the petitioner, more or less, reiterated the grounds of revision petition, which have already been incorporated in pre-paras and finally requested to accept the same while allowing to tender account books and affidavit as evidence because the said documents are necessary for resolving the real controversy between the parties. The learned counsel, in support of his contention, referred to and relied upon a case titled Khurram Zulfiqar Ali v. Mst. Benish Mubarik and another [2009 MLD 766].

4. Malik Mohammad Zarahat Khan, the learned counsel for the respondent while controverting the arguments of the learned counsel for the petitioner, vehemently argued that the petitioner filed a frivolous application for leading certain documents as evidence before the learned trial Court and the same was wrongly accepted whereas the petitioner himself made so-called and fabricated documents just to defeat the rights of the respondent. The learned counsel maintained that the matter is at the stage of recording evidence of the defendant/petitioner and he failed to annex the said documents along-with the written statement and in this regard no explanation has been given. The learned counsel contended that in absence of the original account books no fruitful purpose will be served while the application was filed before the trial Court just to prolong the case and the same was wrongly accepted by the learned Court below. The learned counsel added that the account books and affidavit cannot be tendered as evidence, hence, to that extent the learned trial Court rightly rejected the application of the petitioner. The learned counsel craved that the petitioner wants to tender those documents which have been made by petitioner in collusion with DSP Riaz Mughal, hence, the application before the trial Court for bringing, the above documents, on record as evidence has been filed after pretty long time. The learned counsel defended the impugned order on all counts and prayed for dismissal of revision petition.

5. I have heard the learned counsel for the parties, gone through the contents of the pleadings and considered the controversy involved, therein, carefully.

6. It is almost admitted fact that in connection with the dispute of the payment between the parties when the Bank cheques were dishonored, a case No.294/12 under section 489-F was registered at police Station Kotli on 03.09.12 and Mohammad Riaz Mughal, then DSP during the investigation recovered three books of accounts one from Mohammad Zaman the petitioner and two from respondent Mehmood Butt and recovery memo. was prepared in presence of the witnesses, however, later on after completion of the investigation when the final report was submitted before the competent Court, those books of accounts were not produced rather misplaced/lost or destroyed by someone. The petitioner got attested copies of those books of accounts from the police and documents were attested by the said DSP and those attested copies have been declined by the learned Court below through the impugned order. Previously when the application was moved before the trial Court for summoning the police record and it was found that account's books were not available in the record and the matter was brought up before this Court, the Hon'ble Chief Justice while passing the order dated 10.11.2014 directed the learned Additional District Judge Kotli to hold the inquiry as to whether the defendant has based his claim on the record required to be summoned and if question is answered in affirmative then proceed further in accordance with law. The trial Court vide its order dated 17.12.2014 held that as the petitioner has not relied upon the said accounts books, so, his application to summon the record was refused and that order was challenged by way of revision petition before this Court and it was held that summoning of original record of criminal case would affect the proceedings in criminal case, so, it would not be useful exercise of summoning the record, however, again an inquiry was conducted to find out the record/seized register of accounts and it was also observed by this Court vide order dated 21.04.2015 that Mohammad Zaman, petitioner has a right to obtain attested copies of register and produce it before the Civil Court in support of his version. Thereafter, inquiry was conducted by the learned Senior Civil Judge/Judicial Magistrate Kotli to trace the lost/misplaced books of accounts and the inquiry officer concluded in the following words:

7. From the above conclusion of the inquiry officer, there remains no doubt that the original books of accounts pertaining to the dispute of payment between the parties were recovered in the said criminal case, however, by some police officers those registers were misplaced either intentionally or negligently. In such state of affairs, when the proposed copies of the same accounts books are to be produced in evidence, in my view, there is no legal bar to produce the same in evidence. Section 76 of Qanun-e-Shahadat Order, 1984, comprehensively deals with the said eventuality, relevant portion of the said section is reproduced herein below:- "

76. Cases in which secondary evidence relating to documents may be given: Secondary evidence may be given of the existence, condition or contents of a document in the following cases: - (a) . (b) . (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) . (e) . (f) . (g) when the original is a document of which a certified copy is permitted by this Order, or by any other law in force in Pakistan, to be given in evidence; (h) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection; (i) when an original document forming part of a judicial record is not available and only a certified copy thereof is available, certified copy of that certified copy shall also be admissible as a secondary evidence."

8. In view of above law, the proposed attested copies of the Bank accounts which are directly related to the real controversy between the parties are necessary documents and can be tendered in evidence as secondary evidence. The learned Court below by misdirecting himself erred in law. The learned Court below had to confine itself whether the proposed documents can be tendered/exhibited in evidence or not?

9. At this stage to give the final opinion and make appraisal of produced evidence is not warranted by law. If the original documents are destroyed, lost or misplaced then the Court should resort to other evidence, secondary/circumstantial/corroborative to reach the just conclusion of the case, it should not feel helpless particularly when law provides alternative to establish the truth. The learned Additional District Judge has gone into the deeper appreciation and merits of the case while deciding the case in hand. When a document is permitted to be exhibited, it does not mean that it has been accepted as correct, tendering or exhibiting the documents means making it a part of record, its genuineness, validity or truthfulness can be challenged by way of cross-examination, objections can be raised at the time of arguments. The parties should not be prevented from bringing the evidence on record to prove their version except the evidence which is not admissible under the law. The Court is at liberty to check the veracity, truthfulness or falsehood of documents while appreciating the same at the time of judgment. My this view, finds support from the referred case reported as 2009 MLD 766 it was held as under:- "Even otherwise, the permission to allow to exhibit a document even in civil case does not amount to its acceptance as an alternate evidence. It is only, a receipt and the acknowledgment and the permission to make it a part of record. One can always challenge its validity, correctness or genuineness during the cross-examination or thereafter at the time of final argument. In fact if somebody, wants to bring on record certain piece of evidence he should not refuse to entertain the evidence produced by the parties before them in support of their claim. However, it obviously does not mean acceptance of the same without checking its veracity as well as correctness and justification. The authorities, therefore, need to be benevolent in receiving, however, prudent in accepting its evidential value."

10. In view of above, the learned Additional District Judge was not justified while rejecting the application to the extent of attested copies of the books of the accounts to be produced by the petitioner. The attesting witness (DSP) could be re-examined on the document attested by him. There is no legal bar to summon him as a witness.

11. Furthermore, when this Court while deciding earlier revision petition on 21.04.2015 observed that Mohammad Zaman, petitioner has a right to obtain attested copy of the register and produce it before the Civil Court in support of his version then there was no occasion for the learned trial Court to refuse the same. These documents have already been relied upon by the petitioner in his written statement filed in case No.94/12. By keeping these documents aside, complicated questions of payment/rendition of accounts and recovery of amount could not be decided effectively, however, to the extent of affidavit of Israr Rathore which was not allowed to be produced, the order has been passed in accordance with law because deponent himself could be produced by the parties, no prejudice shall be done to other party. Even otherwise, mere filing of affidavit unless the deponent is cross-examined would be of no use.

12. Before parting with the judgment, it is pertinent to mention here that the original accounts books which were seized by the Investigating Officer during investigation of case No.294/12 of Police Station Kotli. According to the report of inquiry officer/Senior Civil Judge/Judicial Magistrate Kotli, those registers were eliminated from the record by the concerned police official who prepared Ikhtetami report and submitted the same in the Court. The original accounts books were important piece of evidence, whoever, caused its disappearance should be taken to the task, therefore, the DIG Division Mirpur is directed to take appropriate legal actions against the responsible officers under intimation to the Registrar of the High Court. Therefore, in the light of what has been stated above, by accepting this revision petition and setting aside the impugned order, the petitioner is allowed to produce the attested copies of the accounts books as evidence along-with other documents already permitted in accordance wit0h law. ZC/13/HC(AJ&K) Revision allowed.