This is a revision petition under section 115 of the C.P.C. By Saifur Rehman Khan, defendant; it is directed against an order of the learned Additional District Judge, Multan. Dated 5-6-1989 permitting the plaintiff Shahab-ud-Din to produce and prove an audio-cassette containing a talk of the petitioner admitting his liability to pay the sum in question.
2. The plaintiffs suit for the recovery of Rs. 1,59,125 is based upon a cheque dated 30-12-1987. The cheque was duly presented to the concerned branch of the United Bank Ltd. But that bank refused to pay. The petitioner was allowed leave to defend the suit. He filed his written statement on 15-9- 1988 denying his liability to pay the sum in suit. According to him, the "cheque was drawn in consideration of the pesticides goods which were due to be supplied by the plaintiff to the defendant and the said pesticides goods having not so far been supplied by the plaintiff to the defendant, disentitles him to institute the present suit for the recovery pf the suit amount". Issues were framed on 19-12-1988. On 18-3-1989, the plaintiff applied for permission to produce an audio- cassette; it was said that in a talk which, unknown to the petitioner, had been tape-recorded, the petitioner had admitted his liability to pay the sum in question. This happened after the institution of the suit. As this had happened after institution of the suit, the audio-cassette could not it was said, be produced earlier. A prayer was also made that Haji Sohail Ahmed in whose presence the talk was tape-recorded, should also be allowed to be summoned. The application was opposed by the petitioner and the matter was fixed for hearing before the learned Additional District Judge on 5-6-1989. On that date, when the case was called, according to the petitioner's counsel at about 9 a.m. Plaintiff's counsel was present but none was present for the petitioner. The learned Additional District Judge heard the petitioner's counsel and allowed the application saying that the audio- cassette was admissible under Article 164 of the Qanun-e-Shahadat, 1984.
3. Learned counsel for the petitioner, argued that the audio-cassette is not admissible in evidence and in any case, it should not have been in the circumstances of the case, allowed to be produced.
In this connection, it was pointed out that the date and time of the recording of the talk was not mentioned in the application and that the name of the person who had recorded the talk was also not mentioned. Grievance was also made of the fact that the case was taken up in the absence of the petitioner or his counsel at too early an hour of the day viz. 9 a.m.
4. There is a distinction between admissibility and credibility of evidence. Article 164 of the Qanun- e-Shahadat, 1984 expressly authorises the Court to allow to be produced evidence, "that may have become available because of modern devices or techniques in such cases as the Court may consider appropriate. In Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57) the Supreme Court held "that such tape-records are admissible in evidence and that they have been so admitted by the Courts in this country".
5. Learned counsel for the petitioner referred to Mst. Rukhsana Begum v. District Judge, Karachi etc. 1987 MLD 2425 and Mian afar lqbal and 5 others v. Bashir Ahmed Khan and another (PLD 1987 Lahore 650) for his contention that such a tape-record is not admissible in evidence. The precedent cases did not however, lay down any such principle of law. In Mst. Rukhsana's case, interference with the order of the learned District Judge, Karachi, accepting the revision petition against the production of a cassette was refused on the ground that no infringement of any provision of law was pointed out and in Mian Zafar Iqbal's case, all efforts of the petitioner before the High Court to produce the cassettes had failed and one of the grounds on which their revision petition was rejected was that earlier also a similar petition had been dismissed by the High Court and leave to appeal had been dismissed by the Supreme Court. In Hakim A.I Bhatti v. Qazi Abdul Hakim and others (1986 CLC 1784) also cited by the petitioner's counsel for the same proposition, reference was made to Abdul Wali Khan's case where as has been seen above, it had been, held that such tape-records are admissible in evidence and then reasons were given which in the view of the learned Election Tribunal rendered the tape-record and its transcript inadmissible in evidence. The reasons, among others, were that the tape-record had been prepared by the nephew of the petitioner and he was not an independent person; the transcript from the tape- record was not prepared under independent supervision and control etc. If I may say so with great respect, these reasons went to the credibility and not to the admissibility of the tape-record.
6. The parties have yet to lead evidence. As has been observed above, the audio-cassette was prepared after the institution of the suit and the application for permission to produce it in evidence was made before the day of evidence which was 20-3-1989. Whether the audio-cassette contained the voice of the petitioner and whether the plaintiff is able to prove it are all questions for the trial Court. It is also plain that all objections concerning the credit and the evidentiary value of the audio-cassette will be available to the petitioner. In other words all questions relating to credibility of this piece of evidence are open questions and will be determined by the trial Court.
7. For these reasons, I do not find any merit in the revision petition and dismiss it. The parties are, however, left to bear their own costs.