' MUHAMMAD YUNUS SURAKHVI, J.---Through this appeal, with the leave of the Court, the legality of an order passed by the High Court on December 23, 1995, has been assailed, whereby the appeal filed by the appellants herein, against the judgment and decree passed by the Additional District Judge, Bhimber, on September 5, 1995, was dismissed.
2. The precise facts, leading up to the present controversy between the parties, are that Mst.
Sughran Begum, respondent filed a suit in the Coat of Sub-Judge, Bhimber, claiming therein that she being widow of Muhammad Jamil, deceased, was entitled to inherit his estate and to get the benefits of pension and other dues etc. It was averred in the suit that the alleged deed of divorce, dated December 26, 1991, was false, fictitious and fake document prepared by defendant- appellants to deprive her from her rights to inherit the estate of decreased and was ineffective in so far as her rights were concerned. The learned Sub-Judge, after conclusion of the suit, dismissed the same. On appeal before the Additional District Judge, Bhimber, the suit filed by the respondent was decreed. Against the aforesaid judgment and decree of the Additional District Judge, Bhimber, an appeal was preferred by Mst. Shah Begum and others, the rest of the heirs of the deceased, Muhammad Jamil, which was dismissed by the High Court vide the order impugned in this appeal.
3. Arguing the case on behalf of appellants Mr. Muhammad Riaz Tabassum, the learned counsel for the appellants, has submitted with vehemence that the Trial Judge after thorough appraisal of the evidence dismissed the suit filed by the respondent. The respondent was divorced by Muhammad Jamil through a written document and the scribe of that deed including the marginal witnesses have been produced by the appellants but all the same the learned Additional District Judge and the High Court have ignored the divorce-deed on the basis of mere assumptions. The learned counsel submitted that the High Court did not even properly consider the divorce-deed on the ground that the same being photostat copy was not admissible in evidence whereas the fact of the matter is that the original divorce-deed was sent to respondent by mail and it was beyond the control of the appellants to produce the original document.
4. On the other hand, Raja Imdad Ali Khan, the learned counsel for the respondent, fully supported the orders recorded by the Additional District Judge and the High Court. It was submitted by Raja Imdad Ali Khan that the appellants failed to prove that the original divorce-deed was not in their possession and the photostat copy of the same relied upon by the appellants was inadmissible in evidence. It was further argued by the learned counsel for the respondent that the appellants have initiated the litigation merely to deprive the respondent of her legal right of inheriting the estate of her deceased husband and to receive the other benefits. According to the learned counsel the evidence on the record has been properly appreciated by the Additional District Judge and the High Court and the findings of fact could not have been disturbed by this Court.
5. After hearing the respective contentions of the learned counsel for the parties and perusing the record made available with care it may be stated that Mst. Sughran Begum's marriage with Muhammad Jamil, deceased, admittedly took place in the year 1986 and she had been living with her spouse and performing the marital obligations. Muhammad Jamil admittedly died on January 27, 1992, in an accident. In the written statement filed by appellants, the rest of the heirs of the deceased, Muhammad Jamil, it was averred that Muhammad Jamil had divorced respondent on December 26, 1991, through a written divorce-deed. It was nowhere stated by the defendant- appellants in their written statement that the original divorce-deed was sent to respondent through mail and the same was not in their possession or that it was beyond their control. When Mst. Sughran Begum appeared as a witness in the Court of Sub-Judge she totally refuted the plea of divorce but interestingly enough she was not suggested a single question by the defendant- appellants that she ever received the divorce-deed sent to her or had any knowledge of the same.
From the record it transpires that when Mst. Shah Begum, one of the defendants appeared in the Court on June 27, 1993, as a witness, she deposed for the first time in her statement that she had sent the divorce-deed through mail to her brother, the father of respondent. Regarding this aspect of the case nothing is stated further by Mst. Shah Begum.
6. So far as the law on the subject of secondary evidence is concerned, it has been specifically laid down under Articles 76 and 77 of Qanun-e-Shahadat. The principle enunciated under Article 76 of the aforesaid Act is that the best evidence available ought to be produced. Where an original document is available it should be produced as evidence because an original document is a best and primary evidence. Secondary evidence is admissible only in absence of primary evidence.
Unless the loss of the original deed is proved or it is proved that the original is in the possession of, or under control of the opposite-party secondary evidence of it is inadmissible. Again under Article 77 it is the ordinary rule of evidence that before secondary evidence is given of the contents of a written document which is in possession of the other side a notice to produce the original must be given. Where no notice is given to the opposite-party to produce any document in his possession, the party relying on it cannot give secondary evidence to prove it. In the instant case it was neither averred in the written statement that the original divorce-deed was in possession of respondent and as such was beyond the control of defendants to prouce it nor 'an effort was made to move the Court for giving the notice to respondent to produce the original divorce-deed. In such a state of affairs the defendant-appellants, though half-heartedly, attempted to produce the secondary evidence of the divorce-deed in the shape of its photostat copy but failed to deploy the relevant method. Thus, in our opinion a photostat copy of the alleged divorce-deed produced by the defendant-appellants was clearly inadmissible in evidence and no reliance could have been placed on the said photostat copy. The statements of Muhammad Afzal, Muhammad Azam and Raja Mumtaz Khan produced by the defendant-appellants refer to the divorce-deed. Raja Mumtaz Khan is stated to be the scirbe of the divorce-deed, whereas Muhammad Azam Khan and Muhammad Afzal Khan are said to be the marginal witnesses alongwith other persons who have signed the aforesaid deed. Even the statements of these witnesses are contradictory in nature and do not inspire any confidence. Raja Mumtaz Khan, the scribe of the document, deposed in his evidence that he did not sign the document in his capacity as a scribe. Muhammad Azam Khan, one of the marginal witnesses, could not identify his signatures from the photostat copy of the divorce-deed during the course of his evidence. Muhammad Afzal Khan, the other marginal witness, deposed in the Court that he signed the divorce-deed both in Urdu and English but the fact remains that his signature appears to be only in Urdu. Another significant aspect of the case is that if we assume for the sake of arguments that Muhammad Jamil, deceased, in fact divorced Mst. Sughran Bi, through a written divorce-deed even then it has not been established by the defendants that the same was delivered to Mst. Sughran Bi during the lifetime of her husband or she had any knowledge about it. There appears nothing on the record that the divorce-deed was received or conveyed to the respondent. Our considered view is that the learned Additional District Judge rightly ignored the photostat copy of divorce-deed and disbelieved the scribe of divorce- deed and its marginal witnesses, particularly so when Muhammad Azam, Member. Union Council, Khambah and Chaudhry Muhammad, Vice-Chairman, Union Council, Khambah claimed to have signed and affixed their stamps on it were withheld by the defendant-appellants and not produced in support of the above document. Even the signatures of Muhammad Jamil, deceased, on the photostat copy of divorce-deed were not got proved either by the scribe of the document or the other marginal witnesses. Thus, the view expressed by the learned Additional District Judge regarding the inadmissibility of the photostat copy of divorce deed and disbelieving the evidence of witnesses produced by the defendant-appellants having been upheld by the High Court, we, on careful consideration, concur with their views and have no reason to upset their findings.
7. For the aforestated reasons, finding no force in the appeal, we order its dismissal with costs.