' This revision petition filed by the plaintiffs assails the concurrent findings of the learned trial Court dated 20-12-1995 and of the learned lower Appellate Court dated 19-5-1999. The facts of this case are straightforward. The petitioners, namely, Noor Din, Safaid Khan and Shakar Bibi are brothers and sister respectively of Maqbool Ahmed (father of the respondents Nos.1 to 5) and Fajroo Khan respondent No,7. They had a fifth brother, namely, Fazal Din, who was residing in India and is alleged by the petitioners to have died on 13-5-1986.
2. The said brothers and one sister were owners of land measuring 61 Kanals, 4 Marlas situated in Mauza Kamahan, Tehsil and District Lahore.
3. It is the case of the petitioners/plaintiffs that the respondent No,1 Saleem Ahmed fabricated and falsely registered a power of attorney dated 19-7-1990, purportedly executed in favour of Jan Muhammad respondent No,6 by the two brothers, namely, Fazal Din and the petitioner No,2 Safaid Khan. In purported exercise of the powers vested in Jan Muhammad by virtue of the aforesaid power of attorney, a sale-deed was got registered by Saleem Ahmed (respondent No,1) in his own favour in respect of the respective shares of Fazal Din and Safaid Khan.
4. The petitioners/plaintiffs thereafter filed a suit seeking declaration of title and also seeking cancellation of the general power of attorney dated 19-7-1990 and the sale-deed dated 6-10-1990.
To prove their case, the petitioners produced in evidence a death certificate in Hindi issued by the relevant public functionary in India and a translation thereof, to show that Fazal Din had died on 13- 5-1986. These documents were tendered in evidence by Noor Din, who appeared as P.W.3. At that time, the respondents objected to the admission of the said documents in evidence. These were, therefore. Placed on the record as mark-A and mark-B respectively. The learned trial Court also observed that the question as to the admissibility of the aforesaid documents shall be determined at the time of the decision of the suit.
5. The learned trial Court, however, did not decide the aforesaid issue or take into consideration the aforesaid documents (mark-A and mark-B) while dismissing the suit filed by the petitioners/ plaintiffs.
6. The respondents/defendants claim that both Fazal Din and Safaid Khan were alive and present in Pakistan when they executed the aforesaid power of attorney on 19-7-1990. The factual controversy between the parties can be resolved if the date of death of Fazal Din is established. The documents mark-A and mark-B undeniably are relevant for the purpose of ascertaining the date on which Fazal Din died. The only question which remains is about the admissibility of the said documents.
7. As noted above, the document mark-A is a copy of the record of deaths maintained in the State of Haryana in India. The said document relates to an entry in the said register showing the death of one Muhammad Fazal Din as having taken place on 13-5-1986. The date on which the entry was recorded in the register is 22-5-1986. The document mark-A has been certified on 25-9-1991 by Mr. K.C. Kohli under his official seal. The document mark-A has also been attested by one Manohar Lal Jee, Notary Public of Gorgoan on 12-3-1993. The High Commission of India in Islamabad endorsed the document on 31-3-1993 with the words "attested and seen". The document mark-B, which is a translation of mark-A has also been notarized and attested by the above named Notary Public and by the Indian High Commission in Islamabad. As noted above, the learned trial Court did not give any ruling as to the admissibility of mark-A and mark-B in evidence. The learned lower Appellate Court vide its judgment dated 19-5-1999 has held that the said documents are inadmissible in evidence as the same do not comply with the requirement of Article 89(5) Qanun-e-Shahadat Order, which provides as under:-- 89(5). Public documents of any class in a foreign country,-- by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of a notary public, or of a Pakistan Consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country."
8. The aforesaid Statutory provision sets out three conditions for the admissibility of copies of the original record of public documents maintained in a foreign country. The above legal provision and the corresponding provision of the Evidence Act have been considered by Courts in Pakistan. The question was examined in the case titled Muhammad Usman v. Lal Muhammad and others PLD 1975 Karachi 352. In this case the document in question was a certified copy of the record maintained by Ajmair Municipality in India relating to births recorded within the jurisdiction of the Municipality. The document was found to be inadmissible firstly because there was nothing on the record to show that the document had been prepared under the requirements of some Indian statute. The document was also rejected on the ground that it had not been notarized. In the case titled Fazal Hussain and others v. Sawar and others 1985 CLC 1157 a death certificate issued in Pakistan was held to be inadmissible under section 78 of the Evidence Act 1872 as adopted by the State of Azad Jammu and Kashmir. It was observed that no proof had been given regarding the character of the document in the sense that it had been maintained under some specific law in force in Pakistan. It was also noted that it did not bear the seal of a Notary Public. In the case titled Mahboob Ali and others v. Sharifan Bibi and others 1991 CLC 1201 a pedigree table purported to be certified by an official functionary in India and also bearing the seal of the Pakistani High Commission in Delhi was held to be inadmissible because it did not bear the certificate required under Article 89(5) reproduced above.
9. From a discussion of the above cited precedents, it is evident that all the three conditions set out in Article 89(5) of the Qanun-e-Shahadat Order must be satisfied before a copy of the foreign public document becomes admissible in evidence before a Court in Pakistan. Applying the ratio of these precedents to the case in hand, it can be seen that the documents mark-A and mark-B did not bear the required certificate nor was any proof adduced in evidence regarding the character of the documents. In the circumstances, the ruling of the learned lower Appellate Court is in accordance with law.
10. However, it is clear that the trial Court should have decided the question of admissibility of the aforesaid documents at the time when the respondents had raised their objection. The failure of the learned trial Court to give its decision at the time the objection was raised, followed by its failure to give a decision on the question even while deciding the suit, caused prejudice to the petitioners. If the trial Court had given its decision holding that the documents were inadmissible in evidence on account of non-fulfilment of the conditions laid down in Article 89(5) referred to above, the petitioners-plaintiffs could have sought time to produce admissible copies prepared in accordance with the aforesaid legal provision.
11. This petition is, therefore, allowed. The impugned judgments and decrees are set aside. The matter shall be deemed pending before the learned trial Court. Since in the present form the documents mark-A and mark-B are inadmissible in evidence, the petitioners shall be allowed an opportunity to adduce in evidence copies of the death certificate which comply with the requirements of Article 89(5) of the Qanun-e-Shahadat Order. Needless to say the respondents shall also be entitled to produce any evidence in rebuttal.
12. Since both parties are represented, they are directed to appear before the learned Senior Civil Judge, Lahore on 5-5-2003. The learned Senior Civil Judge shall either decide the suit himself for entrust it to a competent Civil Court for decision afresh in terms of this order.