Secondary Evidence
Secondary Evidence legal meaning, translation and judicial precedents.
Meaning & Judicial Interpretation: (اردو مفہوم اور قانونی تشریح)
Evidence of Investigating Officer as well the affidavit allegedly sworn by respondent No.2, showed that Investigating Officer had produced an attested copy in respect of affidavit and not the original and same had been though marked as exhibit, which was inadmissible evidence in view of requirement of Art.76 of the Qanun-e-Shahadat, 1984, as the prosecution was under burden to produce the primary evidence
In case of loss or misplacing of the primary evidence, an application to seek permission must be filed during evidence which was mandatory under Art.76 of Qanun-e-Shahadat, prosecution, therefore exhibition of copy of affidavit could not be held admissible document and could not be read into evidence while passing impugned judgment as it had rightly been done by the Trial Court
Even such factum had not been attributed to respondent No.2 during recording his statement under S.342, Cr.P.C.
Appeal against acquittal was dismissed, in circumstances.
Failure to ensure compliance with Article 76 of Qanun-e-Shahadat, 1984 vitiates evidentiary basis upon which findings of Courts below were rendered, necessitating intervention by Supreme Court.
Proceedings under Sections 290 and 291 of Companies Ordinance, 1984 were initiated against respondents for inquiry into mismanagement and oppression in corporate affairs
Company Judge allowed the petition and Division Bench of High Court dismissed the appeal
Objection was raised by appellant on admissibility of secondary evidence
Validity
Issues arising in the present case had brought into sharp focus the fundamental role of corporate governance in ensuring that companies act with transparency, fairness, and accountability
Protection of shareholder rights, obligation of disclosure, and adherence to ethical governance practices were not optional aspirations; they were indispensable pillars upon which trust in corporate structures was built
It was by steadfast commitment to such principles that corporations earn legitimacy, foster sustainable growth, and contribute to economic and social well-being of wider community
Corporate governance was, in its essence, a framework designed not merely to direct corporate conduct but to safeguard interests of all stakeholders through structured, principled oversight
Supreme Court accordingly reaffirmed that transparency, good faith disclosure, and protection of shareholders must remain at the heart of all corporate endeavors, for it was only through such adherence that confidence in corporate sector and by extension, in rule of law itself, could be maintained and strengthened
Supreme Court declined to interfere in concurrent findings of facts by two Courts below
Appeal was dismissed.
Proceedings under sections 290 and 291 of Companies Ordinance, 1984 were initiated against respondents for inquiry into mismanagement and oppression in corporate affairs
Company Judge allowed the petition and Division Bench of High Court dismissed the appeal
Objection was raised by appellant on admissibility of secondary evidence
Validity
Company Judge erred in proceeding summarily in a dispute that required a full evidentiary examination
Nature of the controversy, involving serious allegations of forgery and fabrication, necessitated framing of issues and recording of evidence; procedural safeguards that were improperly bypassed
Statutory prohibition under section 148 of Companies Ordinance, 1984 (section 121 of Companies Act, 2017) precluded recognition of a trust over shares in the company's register, reinforcing the principle that the company was not bound to take notice of any alleged trust arrangement
Claim of trust, as asserted by respondents, was legally untenable
Improper admission of secondary evidence in violation of Article 76 of Qanun-e-Shahadat, 1984 undermined validity of proceedings
Failure to establish preconditions for admissibility of secondary evidence rendered reliance on disputed documents unsustainable
Discretion of Company Judge in treating the Shareholders' Agreements as genuine was exercised in disregard of established legal principles, given the absence of a proper evidentiary inquiry
Division Bench, in upholding such finding, failed to recognize procedural and substantive irregularities in the adjudication of the case
Parties could pursue their respective claims in pending civil suits, wherein all matters in controversy, including validity of Shareholders' Agreements and legitimacy of meeting in question of Board of Directors were to be adjudicated
Supreme Court set aside judgments passed by Company Judge as well as by Division Bench of High Court
Appeal was allowed. [Majority view]
Failure to ensure compliance with Article 76 of Qanun-e-Shahadat, 1984 vitiates evidentiary basis upon which findings of Courts below were rendered, necessitating intervention by Supreme Court.
Proceedings under sections 290 and 291 of Companies Ordinance, 1984 were initiated against respondents for inquiry into mismanagement and oppression in corporate affairs
Company Judge allowed the petition and Division Bench of High Court dismissed the appeal
Objection was raised by appellant on admissibility of secondary evidence
Validity
Company Judge erred in proceeding summarily in a dispute that required a full evidentiary examination
Nature of the controversy, involving serious allegations of forgery and fabrication, necessitated framing of issues and recording of evidence; procedural safeguards that were improperly bypassed
Statutory prohibition under section 148 of Companies Ordinance, 1984 (section 121 of Companies Act, 2017) precluded recognition of a trust over shares in the company's register, reinforcing the principle that the company was not bound to take notice of any alleged trust arrangement
Claim of trust, as asserted by respondents, was legally untenable
Improper admission of secondary evidence in violation of Article 76 of Qanun-e-Shahadat, 1984 undermined validity of proceedings
Failure to establish preconditions for admissibility of secondary evidence rendered reliance on disputed documents unsustainable
Discretion of Company Judge in treating the Shareholders' Agreements as genuine was exercised in disregard of established legal principles, given the absence of a proper evidentiary inquiry
Division Bench, in upholding such finding, failed to recognize procedural and substantive irregularities in the adjudication of the case
Parties could pursue their respective claims in pending civil suits, wherein all matters in controversy, including validity of Shareholders' Agreements and legitimacy of meeting in question of Board of Directors were to be adjudicated
Supreme Court set aside judgments passed by Company Judge as well as by Division Bench of High Court
Appeal was allowed. [Majority view]
Proceedings under Sections 290 and 291 of Companies Ordinance, 1984 were initiated against respondents for inquiry into mismanagement and oppression in corporate affairs
Company Judge allowed the petition and Division Bench of High Court dismissed the appeal
Objection was raised by appellant on admissibility of secondary evidence
Validity
Issues arising in the present case had brought into sharp focus the fundamental role of corporate governance in ensuring that companies act with transparency, fairness, and accountability
Protection of shareholder rights, obligation of disclosure, and adherence to ethical governance practices were not optional aspirations; they were indispensable pillars upon which trust in corporate structures was built
It was by steadfast commitment to such principles that corporations earn legitimacy, foster sustainable growth, and contribute to economic and social well-being of wider community
Corporate governance was, in its essence, a framework designed not merely to direct corporate conduct but to safeguard interests of all stakeholders through structured, principled oversight
Supreme Court accordingly reaffirmed that transparency, good faith disclosure, and protection of shareholders must remain at the heart of all corporate endeavors, for it was only through such adherence that confidence in corporate sector and by extension, in rule of law itself, could be maintained and strengthened
Supreme Court declined to interfere in concurrent findings of facts by two Courts below
Appeal was dismissed.
Petitioner had conceded before the High Court that only one witness appeared before the Court but the other witness could not be produced as he had already died
In case the said witness had passed away, then the petitioner was under an obligation to prove his death and prove through secondary evidence the elements such as comparison of signatures and thumb impressions with admitted thumb impressions and signatures on other documents and he was required to prove signatures or thumb impressions of dead person through identification of his signatures from any one of his relatives like son, brother, etc.
Mere statement of the plaintiff regarding death of a witness did not alleviate or exonerate him to prove the contents of a disputed document
Said facts should have been pleaded and having established the non-availability of the witness by reason of his death, steps should have been taken to adduce secondary evidence with the leave of the Court
Findings contained in the impugned judgments and decrees dismissing the suit for specific performance of agreement to sell did not warrant any interference and concurrent findings of facts could not be interfered with, especially, if the wishful thinking of the petitioner expected a different conclusion on facts than the one arrived at by the courts below
No material illegality or irregularity having been noticed in findings contained in the impugned judgments and decrees passed by the Courts below, the same were maintained
Civil revisions were dismissed, in circumstances.
Plaintiff/applicant sought permission to produce secondary evidence with regard to documents in question which were claimed to be lost
Validity
Plaintiff/applicant could not claim benefit of Art. 76(c) of Qanun-e-Shahadat, 1984
Loss of original documents was not due to uncontrollable or unforeseeable event but rather resulted from plaintiff's/applicant's own internal mismanagement
Allowing secondary evidence under such conditions would undermine the principle that parties must exercise proper care in preserving documentary evidence, particularly when such documents form basis of a legal claim
Request of plaintiff/applicant to rely on secondary evidence under Art. 76(c) of Qanun-e-Shahadat, 1984 was legally unsustainable and could not be entertained
Protection of Art. 76(c) of Qanun-e-Shahadat, 1984 is not granted mechanically or routinely; it is contingent upon the party demonstrating that loss of documents occurred despite exercising reasonable care and was not due to its own negligence
Plaintiff's casual assertion of loss, without any accompanying evidence of efforts to prevent or mitigate such loss, indicated lack of due diligence
Such plea was only raised when Evidence Commissioner refused to exhibit photocopies of documents concerned
High Court declined producing of secondary evidence of documents in question as plaintiff/applicant was treating invocation of Art. 76(c) of Qanun-e-Shahadat 1984, as an afterthought rather than a legitimate legal entitlement
Application was dismissed, in circumstances.
According to the report of process server, said Medical Officers were reported to have not been found in the given address
Thus, Head Clerk, THQ Hospital was summoned for recording his statement as secondary evidence
It was evident from the record that the Trial Court had neither adopted the procedure as provided under Chapter-VI of Cr.P.C. for summoning of said witnesses nor any valid reasons whatsoever had been explained that under what circumstances the said witnesses could not appear before the Trial Court
Trial Court allowed the application simply on the report of process server wherein said witnesses were reported to have not been found on the given addresses
If it was assumed that the said witnesses left the job from their assignments even then it could not be held without ascertaining that there would be no chance to bring them into the witness box for recording their evidence or the said witnesses were out of reach
Trial Court had failed to exercise its powers as provided under Chapter-VI of Cr.P.C. pertaining to summoning of said pivotal witnesses
Furthermore, the Trial Court allowed the application for producing secondary evidence without observing the codal provisions of law, thus the impugned judgment was not maintainable on such ground alone
Appeal was allowed by setting aside the impugned judgment and the case was remanded to decide the matter afresh accordingly.
Petitioner/defendant/ Bank was aggrieved of order passed by Trial Court allowing respondents/plaintiffs to produce documents as secondary evidence
Plea raised by petitioner/Bank was that secondary evidence could not be adduced without issuing notice in such regard
Validity
Requirement of notice to be issued was relevant in a situation when a document was required to be produced from the possession of a person
Documents to be produced were no more in the possession of petitioner/Bank and had been submitted in another Court
No notice was required to be issued to Bank
Respondents/plaintiffs had a prima facie case and they deserved permission to lead secondary evidence
High Court declined to interfere in permission to produce secondary evidence
Revision was dismissed , in circumstances.
Petitioner/defendant/ Bank was aggrieved of order passed by Trial Court allowing respondents/plaintiffs to produce documents as secondary evidence
Plea raised by petitioner/Bank was that secondary evidence could not be adduced without issuing notice in such regard
Validity
Requirement of notice to be issued was relevant in a situation when a document was required to be produced from the possession of a person
Documents to be produced were no more in the possession of petitioner/Bank and had been submitted in another Court
No notice was required to be issued to Bank
Respondents/ plaintiffs had a prima facie case and they deserved permission to lead secondary evidence
High Court declined to interfere in permission to produce secondary evidence
Revision was dismissed, in circumstances.
Plaintiff sought recovery of money received by defendant along with mesne profit for making investments of that money in apartments
Validity
When defendant alleged that sale agreement and receipts were fake in respect of sale transaction of property and defendant did not produce original agreement or receipts on the plea that the same were lost, evidence with reward to loss of documents should have been produced first and then secondary evidence could be led
If loss of documents was not true, then secondary evidence had become useless
Signature or writing could be proved by adducing evidence of a person or persons conversant or equated with such signature
Alternatively, signature or writing could be examined by an expert and in failure to do so, burden was not shifted to other side and the suit should fail
Court in terms of Art. 84 of Qanun-e-Shahadat, 1984, could itself ascertain whether a handwriting or signature was genuine or not by comparing disputed handwriting or signature with admitted signatures, and then arrived at its own findings
One who pleaded fraud, onus was on him to prove the same and mere statement was not sufficient
For a Promissory Note, attestation was not a legal requirement as envisaged in Art. 17(2)(a) of Qanun-e-Shahadat, 1984
Not mandatory to refer document and signatures to handwriting expert, particularly in a situation where other party did not deny his signatures on number of documents
Witness was not cross-examined on material part of evidence and that part of testimony was considered to be admitted
During cross-examination, a witness stated that it was not within his knowledge, which meant that such witness was not sure about the assertion
Apartments in question were purchased by funds of plaintiff which was acknowledged by defendant in two documents
Defendant was liable to pay amount in question to plaintiff with 10% markup from the date of filing of suit, till realization of the amount
Suit was decreed accordingly.
Article 73 of the Qanun-e-Shahadat, 1984, explains evidence to mean the document itself produced for the inspection of the Court, whereas under Art. 74, secondary evidence means and includes certified copies; copies made from the original by mechanism processes which in themselves ensure the accuracy of the copies; copies made from or compared with the original; counterparts of documents as against the parties who did not execute them and oral accounts of the contents of a document given by some person who has himself seen it
Article 75 clearly and in unambiguous terms states that documents must be proved by primary evidence except in the circumstances as mentioned in the Qanun-e-Shahadat, 1984
Exceptional circumstances in which secondary evidence can be admissible are contained in Art. 76 of the Qanun-e-Shahadat, 1984; when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it; when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; 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; when due to the volume or bulk of the original, copies thereof have been made by means of microfilming or other modern device; when the original is of such a nature as not to be easily moveable; when original is a public document as provided in Art. 85; when original is a document of which a certified copy is permitted by the Order or by any other law; when the original consists of numerous accounts or other documents which cannot conveniently be examined in Court, and when original document forming part of a judicial record is not available and only certified copy thereof is available
Article 77 states that secondary evidence of the contents of the documents as mentioned in Art. 76 would not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is or to his advocate such notice to produce it as is prescribed by law, and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances.
Certified copy of a document would be considered on secondary evidence as contained in Art. 74(1) of Qanun-e-Shahadat, 1984.
Appellant assailed order passed by appellate court whereby accused was acquitted of the charge framed under S. 489-F, P.P.C., inter alia, on the ground that original cheque was not brought on record
Accused had not impleaded the complainant as respondent in his appeal
Appellate court was under obligation to direct the accused to implead the complainant as party and then issue notice to him
Hearing the other side was based upon the principle of natural justice which was embodied and inherent in every statute sans express provisions
No adverse order could be made detrimental to the party without giving him a notice
Appellate court while deciding the appeal was under obligation to direct the complainant to produce original cheque and must have allowed him to bring on the record the original cheque and to prove the circumstances for non-production thereof as per the provisions of Qanun-e-Shahadat, 1984, but such opportunity was not provided
Appeal was allowed, case was remanded to the appellate court and it was directed to allow the parties to adduce additional evidence.
Projected destruction or loss of document was to be proved by leading some evidence or by bringing on record some supporting material.
Respondent filed application for declaration of oppression against appellant for shattering his confidence by becoming major shareholder in company through fraudulent transfer of shares
Company Judge allowed application filed by respondent
Plea raised by appellant was that photocopies were relied upon by the Company Judge
Validity
Filing of photocopy was permissible proof of furnishing of documents
Provisions of Art. 74 of Qanun-e-Shahadat, 1984 duly considered same as secondary evidence which included copies made from original by mechanical process
Definition of words 'secondary evidence' was an inclusive definition which allowed furnishing of copy made by a copying machine from original
To accept secondary evidence, i.e., certified copy or an accurately compared copy of original of document was a common factor which was also considered to be as good as an original document
Even if originals were not produced before Company Judge, same was not detriment to case of appellant as it was within discretionary power of the Company Judge to call for originals if so desired
Original having not been required by the Company Judge, considering photocopies of agreements, i.e., secondary evidence to be an accurately compared copy/certified copy of original documents which was considered to be as good as original document by the Company Judge
High Court declined to interfere in the matter
Objection was declined in circumstances.
Authorities were aggrieved of judgment and decree passed by Single Judge of High Court in favour of plaintiff on grounds that photocopies of measurement book were inadmissible
Validity
Measurement Book was an important document and same always remained in custody of Engineers
If it was misplaced, it created a great spot of malfeasance upon those who were custodians of same
After missing of Measurement Book, Assistant Engineer and Executive Engineer had not bothered to lodge even a non-cognizance report
Such conduct itself showed that how the functionaries behaved in case of missing of a valuable record
In case of missing Measurement Book, majority of civil work done could easily be reentered in another Measurement Book by re-measuring work done in brick and mortar
As soon as Measurement Book was recorded, entries should have been verified and bills were prepared in office of Executive Engineer by recording measurement in requisite document
Measurement could again be obtained either directly from site or from other relevant record which was never done
Any objection regarding inadmissible piece of evidence was supposed to be raised at the very time of recording of such evidence and not thereafter
Inadmissible documentary evidence, if not objected, became admissible
Division Bench of High Court declined to interfere in judgment and decree passed by Single Judge of High Court as same neither had misreading or non-reading of available evidence
Intra-court appeal was dismissed in circumstances.
To substantiate proceedings of raid, recovery of narcotics and arrest of accused persons, complainant/ investigating officer did not appear before Trial Court and such fact was fatal for prosecution and sufficient to demolish entire structure of prosecution case
Secondary evidence could be led through another witness who must remain associated with actual witness and was acquainted with his handwriting and signatures
Neither circumstances requiring to lead secondary evidence were brought on record nor witness who was produced as secondary evidence remained associated with complainant/ investigating officer and was not acquainted with his handwriting and signatures
Prosecution witness appearing as secondary evidence never worked with complainant/investigating officer and witness had not seen any document prepared by him
Prosecution failed to substantiate proceedings allegedly carried out by complainant/ investigating officer
Prosecution had alleged that complainant/investigating officer was responsible for concocting false FIRs against innocent persons who was removed from service
Such allegation of prosecution also discredited complaint against accused persons
High Court set aside conviction and sentence awarded by Trial Court to accused persons and they were acquitted of the charge
Appeal was allowed in circumstances.
Secondary evidence, could only be permitted, when the original of the document was not available, or the same could not be produced due to unavoidable circumstances
Nothing was on record to show that the Bank authorities sought any permission from the court to produce secondary evidence
Secondary evidence produced without seeking permission from the court, had no evidentiary value.
When plaintiff appeared in witness-box and deposed that neither she appointed her general attorney nor authorized him to alienate her property through gift, onus to prove the valid execution of general power of attorney as well as attestation of mutation and transaction reflected therein would shift upon the defendants being beneficiaries
Basic document i.e. original general power of attorney was not tendered in evidence by the defendants
Original document was required to be brought on file so that genuineness of signatures/thumb impression of the executant over the same could be ascertained
If said document had been lost or destroyed defendants were bound to file application for seeking permission to tender its attested copy as secondary evidence
Attested copy of general power of attorney was brought on file but without seeking any such permission for its exhibition as secondary evidence
Had defendants moved such an application, they were bound to first prove its lost or destroy and thereafter could be permitted to lead the same in evidence
Attested copy of attorney deed did not suffice the purpose of proving the same
Presumption attached to copy of a registered document would be to the extent of document having been registered and not to the effect having been executed by a particular person
Attesting Officer should procure signature and thumb impression of the principal against the entry made by his official in Behi Register
Application could be made for comparison through expert in such circumstances
No application for comparison of signature/thumb impression through expert had been moved by the defendants
Report of expert was not conclusive evidence but if it was proved, the same could be used as corroborative piece of evidence
Beneficiary had incurred an adverse presumption against him by not resorting to such exercise
Deed Writer, Stamp Vendor and one of the attesting witness who played their role in construction of attorney deed could not be examined being already departed
Attesting Officer was not brought into the witness-box and only one marginal witness was examined but his sole statement was insufficient to prove the contents as well as the signature of executant
Defendants had failed to prove the execution of their documents
Agent on behalf of his principal could not make a gift to his fiduciary relations without seeking prior permission to transfer the property
No embargo of limitation could be imposed to challenge a fraudulent instrument
Document being result of misrepre-sentation was liable to be struck down and could not be protected with rule of limitation
Fraud would vitiate the most solemn proceedings and could not be perpetuated due to some hitch/ objections
Alienation of suit property by the brother of plaintiff in favour of his sons on the basis of general power of attorney was not sustainable
Revision was dismissed in circumstances.
Every illiterate woman whether she was parda observing or not was protected unless circumstances had suggested that she was of an exceptionally able to manage her affairs independently
Parda observing, old and illiterate women could easily swallow the bait; cautious approach was required when the parties happened to be close relatives
Old and illiterate ladies would be entitled to the same protection which was available to the parda observing ladies
Burden of proof would lie on the person relying upon a document to prove that the executant old illiterate lady of her own free will with full understanding of the implications entered into the transaction in his favour
Defendant being son of plaintiff and beneficiary of sale was obliged to prove that transaction of sale was genuine
When there was statement on oath by the plaintiff that sale deed was based on fraud and misrepresentation, onus would shift to defendant to prove that sale deed had been executed by vendor in accordance with law
Defendant was bound to establish that plaintiff substantially understood the nature of transaction and had the benefit of independent advice in this regard; no evidence in that regard had been produced by the defendant
None of the marginal witnesses had been produced in the witness box
Neither scribe of sale nor any person before whom plaintiff received consideration price was produced as witness
Adverse presumption could be drawn that had such witnesses been examined, they would have not supported defendant's case
Mere signing or putting thumb mark would not amount to execution of document
Document which was not proved was inadmissible in evidence
Defendant had failed to discharge his onus by not explaining the nature of transaction
Nothing was on record that possession of suit land was handed over to the defendant
Essential elements of sale, in circumstances, had not been proved by the defendant
Defendant had produced certified copies of sale deeds and registered documents in evidence
Certified copy of a registered document might prove the contents of original document but execution of original document had to be proved
Certified copy was only a secondary evidence of the contents of the original document and could be produced to the satisfaction of conditions laid down in Art. 76 of Qanun-e-Shahadat, 1984
Defendant did not produce the original sale deeds and had tendered attested copies of the same without seeking permission of the Court
Certified copy of sale deed was not sufficient to prove the execution of original document
Certified copy was not admissible in evidence in absence of original document
Presumption of correctness was attached with certified copy of a document pertaining to official record but if availability or existence of said document was disputed and original was not produced, its certified copy would not be admissible in evidence without proving the non-availability of the original
Defendant had failed to prove the execution of sale deeds in the present case
Time would begin to run from the date when right to sue accrued
Right to sue to declare the sale void and ineffective would accrue from the date of discovery of fraud
Period of limitation would be computed from the time when right to sue accrued to a party
Suit, in the present case, was filed within 2/3 days from the date of gaining knowledge about fraudulent entries in the revenue record
When such entries were found to be without jurisdiction, void and nullity in the eye of law, question of limitation would not come in the way of plaintiff in challenging such fraudulent action of defendant
Findings recorded by the Courts below were against law
Suit was within time in circumstances
Courts below while passing the impugned judgments and decrees had committed illegality and irregularity
Judgments and decrees passed by the Courts below were set aside and suit was decreed
Revision was allowed in circumstances.
Mobile telephone data was a secondary type of evidence which could not be given weight over direct evidence.
Person who had come to the court for grant of a decree for specific performance of agreement to sell was bound to prove the same with regard to specific date when the same was denied or questioned by the other side whose interest was involved in the property
Plaintiff was bound to prove the genuineness of his agreement to sell and to show that the agreement was in the knowledge of all the defendants
Suit property had further been transferred before filing of present suit
Confidence inspiring evidence for proving a document on specific date was Stamp Vendor along with his Register with endorsement of sale of stamp, the person who had purchased the stamp paper on specific date, the scribe of agreement with his Register to show the endorsement of writing of agreement on specific date
Defendants had denied the execution and existence of agreement to sell on the specific date
Plaintiff was bound to prove the execution of agreement to sell on the specific date by producing endorsement in the Register of Stamp Vendor and Petition Writer
None of the referred evidence had been produced by the plaintiff
Best evidence had been withheld by the plaintiff
Evidence, produced by the plaintiff, was not sufficient to prove that agreement to sell was actually written and executed on the date which had been claimed by him
Photocopies had no evidentiary value in the eye of law
Trial Court had wrongly exhibited photocopy of documents; even, no application for permission to produce secondary evidence was moved
Plaintiff had failed to prove the execution of agreement to sell on the specific date
Suit property was not transferred in favour of defendants
Present suit was result of connivance with the plaintiff and vendor
Appeal was dismissed with costs throughout.
Plaintiff filed suit seeking possession of suit property claiming that defendants had been in possession as his licensee
Defendants later filed suit for specific performance on ground that plaintiff had agreed to exchange suit land with their land under oral agreement
Trial court, through consolidated judgment, decreed suit of defendants, and dismissed that of plaintiff
Appellate court maintained decision of trial court
Validity
Ownership of plaintiff regarding suit property had been admitted by defendants by producing Register Haqdaran Zameen
Defendants, in their written statement, had not mentioned that against how much property alleged transaction of "exchange" had been made
Defendants did not plead date, month, venue and names of witnesses to explain as to when, where and before whom "oral exchange contract" had been settled between plaintiff and defendants; instead, only year of oral agreement had been mentioned
Defendants, in their suit for specific performance, for the first time, had pleaded that oral agreement had been settled by plaintiff against different land owned by all defendants
Defendants, in their suit, again failed to plead venue and names of witnesses to explain as to where and before whom alleged transaction had been settled
Glaring major contradictions in statements of defendants' witnesses had badly damaged their case
Defendants' witness had made statement in complete departure of stance as pleaded in their written statement
Defendant's witness had mis-stated area of land which she had alleged to have exchanged with plaintiff against suit property
Defendants had based their claim on oral contract without narrating basic ingredients
None of defendants' witnesses had mentioned exact date regarding settlement of oral contract, terms and conditions of same or exact specification of property owned by defendants, which was alleged to have been exchanged with plaintiff
Written statement and later suit filed by defendants and evidence produced in proof thereof had made their posture highly doubtful
Oral agreement was valid just like written contract provided same fulfilled conditions of valid agreement and also provided through convincing and strong evidence
Impugned judgments and decree were tainted with mis-reading and non-reading of evidence having been passed in complete derogation of settled law, and same, therefore were illegal, unlawful, ultra vires and without jurisdiction
High Court, setting aside impugned judgments and decrees, dismissed suit of defendants and decreed that of plaintiff
Revision petition was allowed in circumstances.
Certified copy of a document would be considered as 'secondary evidence'.
Field Book was not a 'title document' but it was a simple entry which was maintained/kept by the Tapedar while visiting the site
Field Book would not create any right of ownership unless incorporated into 'Jamabandi' (Haqan-jo-register) but the same would show only possession at a relevant date and time
Field Book record and Dhall receipts were the documents which would carry the signature of the Tapedar alone without any attestation or confirmation by other revenue officer(s)
Field Book entries produced by the plaintiffs were with regard to two months i.e. November, 1881 and December, 1881
Plaintiffs had failed to produce subsequent entries to establish continuity of possession
Plaintiffs had not produced a single document to show that entries of such Field Book were transcribed/entered in the record of rights
Non-production of such record should have been taken adverse to the plaintiffs
Plaintiffs had not produced the originals of such documents but had produced copies thereof
Document should be proved by 'primary evidence'
Plaintiffs though had produced the certified copy of such documents but not through the official (s) concerned who were the custodian of the record
No reason had been shown by the plaintiffs or justification for non production of 'primary evidence' on record as required by law
Secondary evidence without any proper explanation for non-production of primary evidence was not worth consideration
Owner of the lost land to the river would remain the owner upon the reformation of such land if it could be identified and act of nature or other acts upon which the owner had no control would not prejudice the right of owner if lost property was later reformed and identified
One would have to establish his ownership before eroding of the land; revival of land and reformation of land and its identification as the same land to claim a right of ownership over the property (land etc) under right of 'Darya Khurdi'
'Darya Khurdi' right could not be insisted without establishing eroding of owner's land/property and its reformation
Plaintiffs had failed to prove their such right over the land in question
Plaintiffs could not prove their ownership with regard to suit property
Only revenue authorities could demarcate the estate and fix boundaries thereof
Plaintiffs had not approached the revenue authorities for identification of their claimed eroded land nor had examined any witness or official to prove such aspect
Right of 'Darya Khurdi' of plaintiffs if any could not be entertained nor suit land could be given to them against such claim
Failure or weakness of rival should not be taken as a circumstance to prove the case of plaintiff rather he had to stand on its own stance
No issue with regard to title documents showing the suit land to be forest land was ever framed by the Trial Court
Court could not pass a judgment and decree which either directly or indirectly would affect the status of a document (title) without framing a proper issue with regard to legal status of such document
Plaintiff could not be absolved from his legal and bounden obligation to prove his claim where rival was such which had no interest to deny his claim
Findings recorded by the courts below were the result of improper appreciation of evidence, material and record
Plaintiffs could not claim to be in lawful possession of suit land
Plaintiffs had failed to establish their ownership with regard to land in question
Forest Department was owner of suit property having documentary proof in its favour
Plaintiffs had not challenged the legality of such documents
Suit of plaintiffs did not have complete relief available to them which they were required to make under O. II of Civil Procedure Code, 1908
Suit of plaintiffs was barred under providing clause of S. 42 of Specific Relief Act, 1877
Province should be sued through the Secretary to that department
Plaintiffs had not sued the Province properly as Province was sued through Deputy District Officer (Revenue)
Deputy District Officer (Revenue) was not the higher authority of the Forest Department nor did he qualify the meaning of "Head of the District" which was the 'Collector' (Commissioner)
Suit of plaintiffs was not maintainable under S. 79, C.P.C. which was mandatory in its nature
Impugned judgments and decrees passed by the courts below were result of misreading and non-reading of available record which were set aside and suit was dismissed
Revision was accepted in circumstances.
Proof of existence, its execution and loss of original document was mandatory especially where execution of original document was declined by the other party
Petitioner without bringing on record unimpeachable evidence and permission of the Court had sought production of documents, which was rightly disallowed by the Court
Constitutional petition was dismissed.
Plaintiff had alleged that defendant had prepared a false, fictitious and concocted document of and that on the basis of the same the defendant was attempting to take over the possession of the property; as well as to incorporate entry in the revenue record
Plaintiff had claimed that said `will' was void, ineffective and inoperative on his rights
Trial Court decreed the suit, but Appellate Court below reversed the findings of the Trial Court and dismissed the suit
High Court accepting appeal against judgment of Appellate Court below, recalled its order and restored the decree of the Trial Court
Validity
Defendant was given notice for production of will-deed, but due to non-availability and out of possession, he could not produce the same
Original document i.e. will-deed had not been produced without any fault or negligence of the defendant
Two attesting witnesses, who had seen said will-deed, had supported the version of the defendant that same was executed in fqvour of the defendant
Secondary evidence in the light of Arts.74 & 76 of the Qanun-e-Shahadat, 1984, was not only admissible, but also had proved the fact of its execution
Such important and legal aspect of the case could not attract the attention of High Court
Court under Art.99 of Qanu;a-e-Shahadat, 1984 would presume .that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law
Execution of will had been proved, in circumstances
Another strong piece of evidence, which supported the version of the defendant was certified copy of the mutation, which had been tendered in evidence without any objection, which would be presumed to be genuine
High Court had not discussed in detail evidence of the parties, whereas it was enjoined upon the High Court to discuss the same because the divergent findings had been recorded by the courts below
Conclusion drawn by the High Court without due and proper appreciation of evidence available on record, did not appear to be consistent with the principle of justice
Every case had its own 'legal and factual propositions, and no case could be decided while ignoring such propositions merely on the basis of a principle laid down in a case in its peculiar facts
Impugned judgment of High Court was set aside by the Supreme Court judgment passed by Appellate Court below stood restored.
Secondary evidence to prove such signature on such copy would not be necessary for same being certified copy of such application.
Plaintiff's/ petitioner's application to lead secondary evidence to prove sale deed which he contended was in the possession of the respondents/defendants; was dismissed concurrently
Contention of the plaintiff/petitioner was that since the document of the sale deed was in possession of the defendants/respondents; the plaintiff/petitioner had no mode to prove the same except through production of a photostat copy of the deed and register of petition-writer
Validity
Under Article 76 of the Qanun-e-Shahdhat, 1984 , secondary evidence relating to a document may be adduced if the original was shown or appeared to be in possession or power of the person against whom the document was sought to be proved
Condition precedent for according such permission in said regard was that the document was shown or appeared to be in possession of the person against whom it was sought to be proved and that such a person had failed to produce the same in spite of notice under Art. 77 of the Qanun-e-Shahadat, 1984
Petitioner/plaintiff had mentioned in the plaint that the original document would be produced but had not mentioned that the said document was in possession of the respondents/defendants, or that the defendants/respondents had taken the same, as was contended in the application seeking permission to lead secondary evidence
Plaintiff/petitioner had categorically stated that the said document was in his possession and control and he would produce the same
Claim of the petitioner that the said document was in possession of the respondents appeared to be false and he could not be allowed to produce secondary evidence
Application of the petitioner was rightly declined by the courts below
Constitutional petition was dismissed.
Plea raised by accused was that Magistrate under whose supervision Test Identification Parade was held was not produced and even during trial accused persons were not identified
Accused raised the further plea that person who conducted entire investigation was reportedly dead and documents prepared by him were not proved through secondary evidence
Effect
Leave to appeal was granted for reappraisal of entire evidence.
Trial Court decreed the suit in favour of plaintiff and declared his degree of B.A. to be genuine but Lower Appellate Court reversed the finding with regard to genuineness of degree
Judgment and decree passed by Lower Appellate Court was maintained by Chief Court
Validity
Without proof of loss or non-availability of original document, secondary evidence of such document was not permissible but no presumption regarding non-existence of genuine B.A. degree with plaintiff could be raised without examination of original record on the basis of which letter was issued by Controller of Examinations of the University concerned
In absence of any evidence in rebuttal to the letter in question the existence of valid B.A. degree in possession of plaintiff stood proved beyond doubt through the certificate of the Controller of Examinations
Concurrent findings of two courts on the issue of genuineness of the degree was the result of non-reading of material evidence and such findings had no significance as the same were the result of non-reading of material evidence
Supreme Appellate Court set aside the concurrent findings of two courts below and restored that of Trial Court
Appeal was allowed.
Judicial consideration of such receipts could not be taken.
S. 65 read with S. 90-Secondary evidence-Private document-Copy of-Can be admitted only after proof of loss or destruction of original-Copy not 30 years old-Not admissible-[Krishna Kishori Chowdhurani and another v. Kishori Lal Roy L R 14 I A 71; Emanuele Grech v. Antonio Grech and others 6 D L R 598 and Mst. Mulkh Bano and others v. Muhammad Banaras Khan A I R 1936 Lah. 788 ref.].
As to contents of a document-Not admissible until proof given of execution and subsequent loss of document.
"Secondary Evidence", Pakistan Law Portal, available at: https://paklawportal.com/words-terms-maxims/21649
Precedents & Case Laws citing "Secondary Evidence"
2013 C L C 1800
Messrs AZMAT TRADING CO. (PVT.) LTD. through Managing Director — Applicant Versus NDLC-IFIC BANK LIMITED — Respondent
Court: SindhP L D 2024 Lahore 695
BAGH ALI — Petitioner Versus ADDITIONAL DISTRICT JUDGE, PAKPATTAN SHARIF and 3 others — Respondents
Court: High Court2014 C L C 773
MUHAMMAD KHALIQ — Petitioner Versus JALAL DIN through Legal Heirs and 2 others — Respondents
Court: Lahore1994 M L D 711
SARDAR SHAH and another — Petitioners. Versus RASUL BIBI and 14 others — Respondents
Court: Lahore1995SCMR1237
Mst. KHURSHID BEGUM and 6 others‑‑‑Appellants Versus CHIRAGH MUHAMMAD ‑‑‑Respondent
Court: Supreme Court of Pakistan2020 C L C 1125
AMIR SHEHZAD and another — Petitioners Versus ADDITIONAL DISTRICT JUDGE, KHANEWAL and others — Respondents
Court: Lahore (Multan Bench)2010 Y L R 1036
JAMEEL AKHTAR — Petitioner Versus Mst .TEHSILA and another — Respondents
Court: Peshawar1997 C L C 1327
Mst. SARWAR BEGUM‑‑‑Petitioner Versus MUHAMMAD SHARIF and another‑‑‑Respondents
Court: Lahore2023 C L D 1390
FAYSAL BANK LIMITED and others — Petitioners Versus Ch. SHEHZAD MUNIR and others — Respondents
Court: Lahore (Rawalpindi Bench)2023 M L D 2088
FAYSAL BANK LIMITED and others — Petitioners Versus Ch. SHEHZAD MUNIR and others — Respondents
Court: Lahore (Rawalpindi Bench)