SHAHID KARIM, J.----This constitutional petition challenges the order dated 26.09.2017 passed by the Civil Judge, Khanewal. It was affirmed in revision petition by the Additional District Judg e, Khanewal vide order dated 28.4.2018. The question merely relates to the production of secondary evidence of the original general power of attorney . An application was filed by some of the respondents/defendants which application was allowed by the impugned orders.
2. The learned counsel for the petitioner submits that the impugned orders passed by the courts below proceed on a misrepresentation of the law which is well established over time by the superior courts. The respondents Nos.2 to 15 were proceeded against ex parte . However , Mr. Iftikhar Ahmad Shahi, Advocate appeared on behalf of the respondents Nos.3, 5 and 13 and was heard in the matter .
3. At the outset, it may be stated that the law relating to production of secondary evidence is well established starting from the judgment of the Supreme Court of Pakistan reported as Mst. Khurshid Begum and 6 others v.
Chiragh Muhammad (1995 SCMR 1237 )wherein the following observations were laid for guidance of the trial courts as regards production of secondary evidence. It was held that: "In our opinion, the High Court fell in error in refusing to examine the question whether the plaintiff had succeeded in establishing the loss of the original documents on the assumption that the point of allowing secondary evidence due to the alleged loss of the original documents had acquired finality when the revisional Court (vide order dated 31.07.1979) disallowed the contention of the defendants (appellants herein). A careful perusal of the said order , however , reveals that accordingly , thereto only the plea that evidence of the loss of documents should be heard first and if the evidence led establishes the said plea, secondary evidence be allowed to be produced, was rejected. It was held that the loss of the documents and secondary evidence can be produced simultaneously but the former has to precede the latter . It was further observed at the time of decision of the case that the Court has to see as to whether loss has been proved or not. If the loss is not proved secondary evidence would become valueless."
4. This was reiterated in Imam Din and 4 others v. Bashi, Ahmed and 10 others (2005 Supreme Court 418) and Mukhtar Ahmad through Legal Heirs v. Muhammad Yunus and 4 others (2001 CLC 1796 ). However , the trial court returned the following findings while dealing with the application filed in the instant case: "...Perusal of the file reveals that while submitting written replies both the learned counsel for the plaintiff No. 2 and defendant No.1 have categorically denied from the existence of General Power of Attorney with them and the present petitioners are alleged bona fide purchasers and they want to prove their case by way of producing evidence. As the document, according to parties have misplaced and Article 76 of Qanun-e-Shahadat, 1984 empowered the court to permit the parties to produce attested copy of document as secondary evidence if original is not available."
5. Thus, the only ground which weighed with the trial court while allowing the application was that in the replies filed by the plaintif f No.2 and defendant No.1 it had been denied regarding the existence of general power of attorney .
Despite this denial by the original executants (one of the parties to the power of attorney) the trial court permitted the respondents herein to produce secondary evidence without the need for a prior proof that the original documents had been lost and which necessitated the production of secondary evidence. In all matters relating to production of secondary evidence, the loss of the original documents is a pre-requisite and this can only be done by evidence. This fact has to be proved by the party seeking to produce secondar y evidence. The appellate court as well did not advert its attention to this aspect of the matter and upheld the order of the trial court. It may also be mentioned that prior applications had been filed by the respondents and these applications were not decided by the trial court. In the first application, the defendants had prayed that a direction be issued to the defendant No.1 Suhail Shehzad to produce the original power of attorney . In the second such application, a direction was sought in respect of defendant No.2 Amira Shehzad i to produce the original power of attorney . Thus the issue relating to the original power of attorney has not been resolved by the trial court and witho ut doing so has permitted the production of secondary evidence which was not proper and lawful.
6. In view of the above, this petition is allowed and the impugned orders passed by the trial court as well as the appellate court are set aside. The trial court shall proceed to frame an issue with regard to the loss of original power of attorney and proceed to take down evidence in respect of that issue which shall be decided along with other issues framed by the trial court.