1. ' MRS. SYEDA TAHIRA SAFDAR, J.---Through this order I intend to 'dispose of Civil Revision Petition No,450 of 2007 titled as Jalil Khan Dotani v. Dawood Ahmed and others and Civil Revision Petition No,451 of 2007 titled as Jalil Khan Dotani v. Tahir Ahmed Dar, whereby the petitioner has sought setting aside of impugned orders dated 18-9-2007 in civil suits filed by him and the contesting respondent against each other, whereby his applications for producing secondary evidence had been rejected by the trial Court. As matters in issue in both the orders are the same, thus in order to avoid any conflicting order both the petitions are decided with this common order.
2. ' The petitioner sought setting aside of impugned orders which are contrary to facts and law, the agreement in question was executed between him and respondent Tahir Ahmed Dar, which was misplaced and despite efforts the same was not traced out. In the circumstances opportunity was required to be given to him for producing secondary evidence, which was declined by the trial court without any cogent reason and justification. As per provisions of Article 76 of Qanoon-e- Shahadat Order, 1984 production of secondary evidence was requested, which was required to be considered on its own merits, which was not done by the trial Court. Despite existence of sufficient cause and reason opportunity way, not provided to him to produce document in question through secondary evidence. He has prayed or setting aside of impugned orders dated 18-9-2007 and allowing him to produce and prove the sale agreement through secondary evidence.
3. ' Learned counsel for the parties are heard, while record is perused. As per counsel for the petitioner the trial Court failed to observe Articles-77 and 78 of Qanoon-e-Shahadat Order, 1984 while in reply of the same it is contention of contesting respondent that the petitioner never produced the sale agreement in the trial Court, nor the same was called by the court during course of trial. Further, after a period of two years the petitioners intimated the court about lost of document only to linger on the case. It is further his contention that existing of document is to be proved at first instance, where after, secondary evidence can be allowed.
4. ' The perusal of record reveals that the petitioner filed a suit for specific performance of agreement dated 30-10-2003 allegedly executed between him and respondents/defendants in respect of property consisting of a house and four shops situated at Basant Singh Street, Mission Road, Quetta, and permanent injunction for restraining the respondents/defendants from making interference in his possession. The suit was contested by respondent No,13/defendant No,12-A (Tahir Ahmed Dar), who in his written statement strongly denied execution of sale agreement and contended that the document in question is a forged one bearing his forged signature thereon. It is his further contention that the petitioner/plaintiff illegally, unauthorizedly and by force came into possession of residential portion of property in question after breaking and removing the locks.
5. Further the property in question is joint property of him and remaining respondents, who are his mother, brothers and sisters. The perusal of record further reveals that the contesting respondent Tahir Ahmed Dar filed a suit for Declaration, permanent injunction and possession against the petitioner in respect of property in question; which is pending before the same court. While both the cases were ordered to be consolidated and proceedings are held jointly before the trial court. It is further apparent from the record that in both the cases the petitioner filed applications with contention that the original sale agreement was in his custody which was lost when he brought the same for production before the court. It is further his contention that he made efforts to trace out the original document, but failed, while photocopy of the document had already been annexed with the plaint and filed in the court. It is further asserted that in same respect he got published advertisement in newspapers dated 9-4-2005 and 11-4-2005. In the circumstances he prayed that he be allowed to prove the sale agreement through secondary evidence. The applications were contested by respondent (Tahir Ahmed Dar). The learned trial Court through orders made on 18-9- 2007 dismissed the applications being without merits, as no sufficient proof for lost of document has been produced. These orders are presently impugned before this court.
6. ' In present case the petitioner relied on an agreement which was allegedly executed between him and contesting respondent (Tahir Ahmed B Dar) in respect of sale of property in question. From perusal of record it is evident that the petitioner claims to be in possession of original agreement in question. Thus as per relevant law he was required to produce the original of the same before the trial Court to bring it on record. As per Article 75 of Qanoon-e-Shahadat Order 1984, document must be proved by primary evidence with some exceptions as mentioned in this Order. In present case it is contended by the petitioner that the document in question has been lost from his custody and despite efforts the same is not traced out, which lie intends to prove through secondary evidence. Article-76 of Qanoon-eShahadat Order 1984 describes instances whereby secondary evidence can be given about existence, conditions or contents of a document. Clause-c of Article 76 of Qanoon-e-Shahadat Order is relevant, which speaks is under:-- "76. .....................................
7. (a)
8. (b)
(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any reason not arising from his own default or neglect, produce it in reasonable time."
9. ' Thus as per the same if an original document has been lost secondary evidence can be produced to prove its existence and contents. In present case as per petitioner the document was lost from his possession, while he immediately effect advertisements in same respect in newspapers i,e, daily Ba-Khabar and Daily Mashriq. The petitioner has placed on record both these advertisements, which reveals that the advertisements were made in Daily Ba-Khabar on 9.4.2005 and in Daily Mashriq on 11-4-2005, which shows that the said document was allegedly lost in year 2005, while as per his own showing he filed applications before the trial court for allowing him to prove the sale agreement through secondary evidence on 11-6-2007 meaning thereby that he approached and intimated the trial court about lost of the document after lapse of more than 2 years. Copy of the said application is present on record, which reveals that the petitioner has not disclosed any reason about said delay. It is further apparent from the record that the issues were already framed by the trial court on 18-12-2004, while the case was pending for adjudication and recording of evidence of petitioner during all these years. In case such incident was happened the petitioner may have intimated the court at relevant time, but he has not done so, nor he has assigned any reason for such a delay. It has been rightly held by the learned trial Court that merely giving reference to advertisement in newspapers is not a sufficient proof for lost of document.
10. ' From perusal of pleadings of the parties it is apparent that there is assertion from the side of the petitioner about execution of document in question which is specifically denied by the other party i,e, contesting respondent. Thus in the circumstances the petitioner has to establish execution and existence of agreement in question between the parties at first instance, where after, he (petitioner) has to establish his assertion that the document in question has been lost without his fault, which makes him entitled to produce secondary evidence in respect of the same. The learned trial Court has come to the correct conclusion, which need not to be interfered.
11. ' In view of above discussion, the petitioner has failed to make out any case in his favour, therefore, the Civil Revision Petition No,450 of 2007 titled as Jalil Khan Dotani v. Dawood Ahmed and others and Civil Revision Petition No,451 of 2007 titled as Jalil Khan Dotani v. Tahir Ahmed Dar are hereby dismissed being without merits.
12. ' No order as to costs.