Introduction
The law of evidence in Pakistan, primarily governed by the Qanun-e-Shahadat Order, 1984, has roots in the earlier Evidence Act, 1872. One of the significant aspects of this law is the procedure to prove the execution of documents, especially when those documents are disputed by the opposing party. Article 78 of the Qanun-e-Shahadat Order serves as the legal provision for the proof of execution, closely resembling Section 67 of the Indian Evidence Act.
In civil proceedings, disputes often arise regarding the authenticity of documents, and the courts have been meticulous in enforcing the requirement that such documents must be properly authenticated. If these provisions are not strictly followed, any such documents, regardless of their relevance, may be rendered inadmissible.
The Civil Revision under discussion revolves around the principles of proof concerning disputed documents, particularly Exhibit-D1, and the undertaking provided by the petitioner. The crux of the issue lies in whether the documents can be considered valid in the eyes of the law, given that they have not been properly proven according to the mandatory provisions of Article 78.
Article 78 and Section 67: Understanding the Mode of Proof
Article 78 of the Qanun-e-Shahadat Order, 1984, stipulates that:
“If a document is alleged to be signed or written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.”
Similarly, Section 67 of the Evidence Act, 1872, requires that the person relying on a document must prove that the document was indeed signed or written by the person alleged to have executed it. The burden of proving the signature or handwriting lies with the party who seeks to rely on the document in legal proceedings.
The mode of proof can involve direct testimony by the person who executed the document or by any person who saw the execution of the document. In cases where the signatory is deceased or unavailable, other forms of secondary evidence, such as handwriting experts or comparison of handwriting, may be permitted.
Failure to adhere to this procedural requirement renders the document inadmissible, as the courts have consistently held that any document brought into the record without proof of execution is merely a piece of paper with no legal effect.
The Importance of Cross-Examination
A fundamental principle of evidence law is the right of the opposing party to challenge the authenticity of any document presented as evidence. This right is exercised through cross-examination, where the opposing party may question the person who executed the document or any witness attesting to its execution.
It is important to note that disputed documents cannot be admitted solely through the statements of counsel. The rationale behind this restriction is to ensure that the opposing party is not deprived of the opportunity to cross-examine the witness regarding the execution of the document. Cross-examination serves as a critical tool in testing the credibility of the document and the veracity of its contents. If the document is admitted without proper cross-examination, it would compromise the fairness of the proceedings.
The courts have repeatedly emphasized that a document must be proven by the person who can vouch for its execution, failing which the document cannot be treated as legal evidence.
Exhibit-D1 and the Undertaking: “Stray Papers” in the Eyes of Law
In the case of Civil Revision-33-22, the key issue is the admissibility of Exhibit-D1 and the undertaking submitted by the petitioner. The petitioner has not followed the mandatory provisions of Article 78, as there has been no proof of execution. Without the requisite proof, the document remains nothing more than “stray papers” with no evidentiary value in the eyes of the law.
The phrase “stray papers” has been used to signify documents that, although presented in court, lack the legal standing or validity to be admitted as evidence. In the absence of proof, such documents have no bearing on the case and cannot be relied upon by the court for making any substantive findings.
The petitioner’s failure to provide proper proof of the execution of Exhibit-D1 deprives the respondent of the opportunity to challenge the authenticity of the document. If a document is merely presented through the counsel’s statement without calling the proper witness for cross-examination, the respondent’s right to test the credibility of the document is effectively curtailed.
Judicial Precedents and Principles
Numerous judicial precedents in Pakistan’s legal system reaffirm the principle that documents cannot be admitted without adhering to the prescribed mode of proof. Courts have consistently ruled that documents not properly proven according to the law are inadmissible, and any reliance placed on such documents by the party submitting them is misplaced.
In Mst. Kaneez Fatima v. Wali Muhammad and others (PLD 1993 SC 901), the Supreme Court of Pakistan held that:
“The documents which have not been properly proved in accordance with the law of evidence cannot be taken into consideration by the courts, and any reliance on such documents is misconceived.”
In another case, Muhammad Akram v. Mst. Zahida Bibi (PLD 2003 SC 61), the court emphasized that:
“A document, in the absence of proof of execution, cannot be relied upon. The failure to prove the execution renders the document irrelevant and inadmissible.”
These judicial pronouncements establish that the courts require strict compliance with the mode of proof under Article 78 of the Qanun-e-Shahadat Order, and any departure from this requirement will result in the document being disregarded as evidence.
Conclusion
In conclusion, Article 78 of the Qanun-e-Shahadat Order, 1984, serves as a critical provision to ensure that the authenticity of documents is properly established before they are admitted as evidence. Any document that is brought on the record without adhering to the mandatory provisions of proof of execution, as outlined in Article 78, is nothing more than a “stray paper” in the eyes of the law.
In the case of Civil Revision-33-22, the petitioner’s failure to prove the execution of Exhibit-D1 and the undertaking submitted renders these documents inadmissible. The court is therefore bound to disregard these documents, as they have not been proven according to the legal requirements.
The oft-repeated principle that disputed documents cannot be tendered in evidence through the statement of counsel remains a cornerstone of the law of evidence. The rationale for this principle is grounded in the need to preserve the right of the opposing party to challenge the document through cross-examination. Without such a safeguard, the proceedings would be inherently unfair, and the authenticity of the document would remain in doubt.