This revision petition is directed against the orders dated 3-4-1980 and 29-6-1980 passed by the learned trial Court in a suit for recovery of Rs. 4,58,50,681 as damages, filed by the petitioner against the respondents. The petitioner-Company deals in Pesticides and represents certain foreign concerns in Pakistan. It entered into a contract with the Government of Pakistan, which was later on rescinded and the petitioner black-listed. The damages have been claimed, on account of loss, suffered by the petitioner due to alleged illegal black-listing.
2. The circumstances under which the impugned orders have been passed are, that in the course of hearing of the suit, the petitioner moved an applica--tion for examination of some witnesses from Karachi, through interrogatories. The learned trial Court by its order dated 3-4-1980, disallowed this ., request. As regards the second order, the petitioner sought to tender in evidence, in the statement of its special attorney, namely Syed Aftab Ahmad Bokhari, certain documents, sent to it by the foreign concerns and prove the same under section 47 of the Evidence Act. These are typed documents, signed by the officials of the foreign Companies concerned. The respondents objected to this mode of proof and contended that the documents in question, could only be proved by the persons by whom these were signed. The learned Civil Judge by means of his order of 29-6-1980 upheld this objection and took the. View that the documents containing, statements of third parties, could not be proved by this witness. In his opinion section 47 would be attracted only if the authors of these foreign documents were dead or they denied the execution thereof.
3. Taking tip the second order first, the learned counsel for the petitioner argued that the evidence of a witness, acquainted with the handwriting or signatures of another person, under section 47, is relevant to prove such handwriting or signatures. He referred to the Explanation of section 47 to stress, that the petitioners-Company had been appointed, as their agent by some well-known foreign Companies which have been in correspondence with it and thus the witness was competent to prove these documents. It was con--tended that the construction put on section 47, by the learned Civil Judge was wholly foreign to it. His other submission, was, that the letters in question were received by the Company in the ordinary course of business, and thus would also be relevant under section 32(2) of the Evidence Act. For his these submissions, the learned counsel drew support from Sarojini Dassi v. Hari Das (1), Karali Prosad Dutla and another v. E. I. Ry. Co. (2), Dalchand Mulchand and others v. Hasanbi (3), The Superintendent and Remem--brancer of Legal Affairs to the Government of East, Bengal v. Mazharul Haq and another (4) and Benoy Bhusan Saha v. Muhammad Abdul Samad alias Ladaimiah (5 .
4. In reply to these arguments, the contention of the learned. Counsel for respondent No. 1 was that the documents in question consisted of state--ments of third parties, which could only be proved by the authors of these documents. He urged, that a very heavy amount is involved in the suit and in these days, the production of the witnesses, from any part of the world, would not present much difficulty. In his submission it was obligatory for the petitioner to prove these documents, through the best available evidence and that was possible only when the signatories of the documents were examined and the respondents giving an opportunity to cross-examine them ; the manner, in which the petitioner manoeuvred to place these documents on the file, under the cover of section 47, was not permitted by law. He relied on Khan Muhammad Yusuf Khan Khattak v. S. M. Ayub and others (6) and Deutsche Dampschiffaharts-Gesellschaft and another v. Central Insurance Co. (7) which also find mention in the impugned order.
(1) AIR 1922 Cal. 12(2) AIR 1928 Cal. 498
(3) AIR 1938 Nag. 152 (4) P L. D 1955 Dacca 77
(5) PLD 1956 Dacca 14 (6) PLD 1973 SC 160
(7) PLD 1975 Kar. 819
5. The learned Assistant Advocate-General who appeared on behalf of the remaining respondents, toed the same reasoning as followed by the learned counsel for respondent No. 1. He referred to the scheme of the Evidence Act and emphasized that under section 67 of the Evidence Act, the documents could only be brought on the record, in the statements of the persons, whose signatures appeared thereon. He further urged that these documents were not directly in issue and thus questioned their relevancy as well.
6. There are several modes of proof of a document. It may be proved-
(i) by calling the writer as a witness ;
(ii) by examining the person in whose presence it was written or signed or who is acquainted with the writing or signatures of the author of the document ;
(iii) by expert evidence;
(vi) by comparison of the signatures under section 73 ; and
(v) by proving the admission of the person against whom the document is used.
Under the illustration (d) to section 3 of the Evidence Act, the opinion or belief of a witness is a fact.
Evidence, however, can be given only of the facts in issue and of the facts declared relevant, under the provisions of the Evidence Act. Section 47, makes the opinion of a person, who is acquainted with the handwriting or signatures of a person by whom it is said to have been written or signed, a relevant fact. It may be observed that in the context of sections 45 to 51, which deal with the opinion of a third person, relevant means admissible. The Explanation appended to section 47, which expands the meaning of the term "acquainted" runs as follows :- "Explanation.-A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be writing by that person have been habitually submitted to him."
It would also be useful to refer here to the illustration to this section which is indicative of its meaning. It provides that a person receiving a letter from a foreign merchant to whom he has been writing ; the latter's clerk who examined and maintained record of such correspondence, and so also the broker to whom these letters were habitually submitted by the recipient thereof, for advice, are all competent witnesses to prove the foreign letter. Thus if the petitioner succeeds in bringing his case within the ambit of section 47, there is no legitimate reason for not receiving these documents in evidence. Of course, it will be for the learned trial Court to determine whether the witness has acquired acquaintance of the signatures of the authors of these documents, worthwhile enough, to make them receivable in evidence.
7. The case-law cited by the petitioner's learned counsel, to some extent supports his submissions. In the two rulings reported as AIR 1922 Cal. 12 and PLD 1956 Dacca 1.4; section 47 was described as one of the modes of proof of the documents. In the Calcutta ruling, a handwriting was allowed to be proved, through the evidence of a witness, qualified to express an opinion in respect of such handwriting. Likewise, in Karali Prosad Duita's case, the signatures on a risk note, were proved not by examining the signatory but by production of another person who was the freight calculator, and before whom the executant admitted that the risk note was signed by him and it was maintained that section 67 never intended that a direct evidence of a handwriting was always necessary. In Dalchand Mulchand v. Hasanbi, the Nagpur High Court, declined to accept the proposition, that a document cannot be proved except by direct evidence. The controversy before a Division Bench of the Dacca High Court in the report PLD 1955 Dacca 77, was whether a sanction for prosecution accorded by the Deputy Secretary of the Ministry of Interior was proved by the testimony of a Police Inspector examined by the prosecution. In the opinion of the Special Judge, as the witness neither worked with the Sanctioning Officer, nor did he see him write or sign, the sanction was not proved, under section 47 of the Act. The High Court, however, found that as the witness had seen the signatures of Deputy Secretary, in the official correspondence, he was competent to prove the same. These precedents firmly establish the proposition that direct evidence, for proving a document is not always indispensible.
8. The execution of every private document is a question of fact, which must be proved like any other fact unless its execution is admitted under section 58 or the Court is satisfied that it is 30 years old document and comes from a proper custody, in contemplation of section 90 of the Evidence Act, The execution of a document is proved, when. It is shown that it was written or signed by the person, by whom it purports to have been written or signed. Section 67, ..However, does not prescribe any particular kind of proof of execution of the documents. Keeping in view the circumstances of each case., the Court in its discretion, may allow to adopt, any mode of proof recognized by the Evidence Act.
9. The view taken by the learned trial Court that section 47 applies only when the writer is dead or denies execution, is palpably wrong. Equally ill-founded is the submission of the respondents' learned counsel that under section 67, the documents are not receivable in evidence unless their authors, enter the witness-box. All that section 67 provides is that the writing or signatures, on a document should be proved that of the executant. On examination of the case-law quoted on behalf of the respondents I find, that it is not of any helpful to them. In the Supreme Court authority, the appel--lant's election as Member of the National Assembly, was declared to be void on the ground that he was the Managing Director of a Company, which at the relevant time, held contracts with the Government for the supply of goods. The Election Tribunal in disqualifying the appellant, relied on a letter dated 16th January, 1971; that by the Company to the Registrar Joint Stock Companies, which was tendered in evidence by a Registration Assistant. The appellant objected that the letter was not proved in accordance with law. This objection was upheld and at page 202 of the report, Anwarul Haq, J.) (as he then was) observed :- " . . . . I find that there is merit in the submission that the provisions of sections 67 and 47 of the Evidence Act were not complied with, as there is no evidence on the record regarding the identity of the hand--writing and the signatures of the appellant as appearing on the certi--ficate appended at the end of Exh. P. E. . . . . . . . . .
So far as the Karachi High Court ruling is concerned, in that case, a Shipper's Invoice was not proved through the examination of its authors, but the plaintiff made any attempt to prove the document under section 47 and this provision PARAGHRAPH IS MISSING
10. During their arguments, both the learned counsel for respondent No. 1 and the learned Assistant Advocate. General, expressed an apprehension, that once the documents were exhibited in the statement of the petitioner' attorney, 'their full impact will fall on the respondents. They laboured under the impression that the contents of a document cannot be severed froth the signatures appended thereon and that the proof of the signatures fully prove its contents as well. This proposition is too sweeping to be accepted. The circumstances of a case, may not call for such an inference. Indeed the evidential value of a document cannot affect its admissibility and vice vets the admissibility of a document is altogether different from its evidential value. It is always for the Court to see in the light of the facts and circumstance of each case, as to what weight is to be given to each piece of evidence and whether or not by the proof of the signatures, the contents of a document also stand proved. The documents in question are yet to be tendered I evidence. I have, therefore, purposely refrained from commenting upon their evidential value, lest it may prejudice the assessm ent of the learned trial Court.
11. Another objection of the learned Assistant Advocate-General, regarding the relevancy of the documents, is yet to be dealt with. I feel that this question does not call for adjudication because the learned trial Court has not expressed any opinion in this respect, nor the matter directly arises out of the impugned order. It will, however, suffice to say, that when the documents are produced in evidence, and an objection is raised to their relevancy, it will be for the learned trial Court to decide this question, in the light of section 12 and other provisions of the Evidence Act.
12. There is still an argument of the petitioner's learned counsel, resting on section 32(2), which remains to be disposed of. As I have already held that the documents can be proved by the petitioner under section 47, their admissibilty, under section 32(2) need not be adjudicated upon.
The learned counsel for the petitioner also did not seem to be much serious in placing reliance on section 32(2). He also did not press the revision, in so far as it relates to the order dated 3-4-1980.
Even otherwise, I find that the reasons advanced by the learned trial Court, in disallowing the petitioner's prayer for examination of the witnesses through interrogatories, are unexceptionable.
13. As a result of this discussion, this revision petition, is accepted to the extent of the order dated 29-6-1980 which is set aside and the learned trial Court directed to record the evidence, in accordance with the observa--tions made in this judgment. As regards the order dated 3-4-1980, the revision petition stands dismissed. The parties are, however, left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.