Munawar Ali vs Asj etc.

Form No.HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, MULTAN BENCH,MULTAN.

JUDICIAL DEPARTMENT

Crl. Misc. No.1620-M of 2024.

Munawar Ali. Vs. Addl. Sessions Judge, etc.

S.No. of Date of Order with signature of Judge, and that of order/ order/ parties of counsel, where necessary. Proceedings Proceedings

17.04.2025. Mahar Muhammad Nawaz Naul, Advocate for the petitioner. Mr. Muhammad Ali Shahab, Deputy Prosecutor General with Akhtar, Station House Officer.

Rao Nazeer Fareed, Advocate for respondent No.4.

Through this petition, order dated 25.11.2023 of learned Additional Sessions Judge, Sahiwal was assailed on the ground that order passed by learned Magistrate dated 24.06.2023 was well reasoned.

2.Shorn of unnecessary details, Dr. Muhammad Iqbal Anjum, CEO Shaheen Maternity & Surgical Hospital, Harappa, District Sahiwal (Respondent No.4) after exhausting all the remedies when failed to get an FIR lodged against the petitioner & another, filed a private complaint with the narration that one Iftikhar Ahmad s/o Bashir Ahmad, employee of TCS company was operated upon for ‘Hernia’ in his hospital on 24.07.2021 who was on follow up treatment. On 21.08.2021, petitioner (Munawar Ali) and an unknown person visited his hospital to verify the fact of above operation by introducing them as insurance agents who started exerting pressure upon him to give a certificate that such operation was fake, and on refusal forcibly took away the stamped letterheads of the hospital. On 07.09.2021, said Iftikhar (patient) came up complaining as to why the hospital declared his operation as fake, due to which he has been deprived of his reimbursement claim from TCS company. Upon which he had shown him CCTV footage of the day when petitioner and unknown person visited his hospital, whom Iftikhar identified as the petitioner (Munawar Ali) and another as employees of TCS company and not the insurance agents. It was later learnt by the respondent

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No.4 that petitioner and another by using such letterheads, prepared two fake certificates, one dated 02.08.2021 purportedly issued by Dr. Khalid of his hospital showing treatment of Iftikhar and other dated 13.09.2021 issued by the Hospital about verification of such treatment. Hence, private complaint.

3.After cursory statement, while passing through commencement proceedings, trial was in process when respondent No.4 filed an application under Sections 540 & 94 of Cr.P.C., before the Court of Magistrate for summoning of Muhammad Akhtar Inspector/SHO for production of CCTV footage of his hospital dated 21.08.2021 and original fake certificates from the custody of petitioner to prove, the fact of visit of the petitioner (Munawar Ali) & another, and the fact that certificates were not issued by him. Learned Magistrate by virtue of order dated 24.06.2023 partly allowed the application to the extent of summoning of CCTV footage through SHO but refused to direct the petitioner for producing the alleged fake certificates. Such order of the Magistrate was overturned by the learned Additional Sessions Judge through order dated 25.11.2023, impugned herein.

4.Learned counsel for the petitioner states that accused/petitioner cannot be compelled to produce alleged certificates in evidence against himself which amounts to self- incrimination, prohibited by Article 13 of the Constitution of the Islamic Republic of Pakistan 1973, particularly when copies of such certificates are available in the record. Whereas learned counsel for the respondent opposed such contention while relying on case reported as “Syed IKRAM GARDEZI Versus The STATE” (1980 P Cr. L J 941) (cited and relied by learned Additional Sessions Judge in the impugned order).

5.Heard; record perused.

6.It is trite that when any document which is sought to be produced in the evidence happens to be in possession of adverse party, the law requires that a notice to produce shall by

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given to the party or his counsel. If on notice document is not produced, the party seeking for production of such document becomes entitled to produce secondary evidence of the document. Article 76 of the Qanun-e-Shahadat Order 1984 mentions the situations when the secondary evidence may be given of the existence, condition or contents of a document. One of the situations is as under;

(a)when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when after the notice mentioned in Article 77 such person does not produce it;

The above paragraph clearly allows for summoning of a document which is in the possession or power of the person against whom the document is sought to be proved; however, it is discretion of such person to produce or not to produce the same. Thus, he cannot be compelled in any manner, which is in consonance with the safeguard provided by Article 13 of the Constitution of the Islamic Republic of Pakistan 1973; however, refusal thereof gives a right to the adverse party to produce secondary evidence of such document.

7.The only requirement for secondary evidence in above case was of giving a prior notice to adverse party, as mentioned in Article 77 of the Qanun-e-Shahadat Order 1984 which is as under;

“Secondary evidence of the contents of the documents referred to in Article 76, paragraph (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his advocate, such notice to produce it as is prescribed by Law and, if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case”:

(Emphasis Supplies)

But requirement of giving prior notice is also exempted through the said Article 77 of the Qanun-e-Shahadat Order 1984 in following cases;

(1)when the document to be proved is itself a notice;

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(2)when, from the nature of the case, the adverse party must know that he will be required to produce it;

(3)when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;

(4)when the adverse party or his agent has the original in Court;

(5)when the adverse party or his agent has admitted the loss of the document;

(6)when the person in possession of the document is out of reach of, or not subject to, the process of the Court.

The situations at Sr. 2 & 3 exist in this case, therefore, giving a prior notice to adverse party was not necessary, but in the present case by filing a direct application before the Court, the respondent No.4 has also met the requirement of notice. Thus, learned Additional Session Judge has rightly passed the order impugned herein.

8.However, if the petitioner produces such certificates before the Court in compliance with the order, then respondent No.4, after perusing it, cannot refuse its production in evidence if the petitioner requires him to do so. This command of law is enshrined in Article 159 of the Qanun-e-Shahadat Order 1984, which is as under;

“159. Giving, as evidence, of document called for and produced on notice: When a party calls for a document which he has given the other party notice to produce and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so”.

But if the petitioner refuses to produce such certificates, then respondent No.4 shall be entitled to produce secondary evidence of such certificates in any of the forms mentioned in Article 74 of the Qanun-e-Shahadat Order 1984, which is as under;

74.Secondary evidence: "Secondary evidence means and includes—

(1)certified copies given under the provisions hereinafter contained;

(2)copies made from the original by mechanical process which is themselves ensure the accuracy of the copy, and copies compared with such copies;

(3)copies made from or compared with the original.

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(4)counterparts of documents as against the parties who did not execute them;

(5)oral accounts of the contents of a document given by some person who has himself seen it.

Above Article shall be attended in the light of illustrations attached to it. Once the secondary evidence of such certificates is produced, petitioner cannot afterwards use the certificates as evidence, without the consent of the respondent No.4 or the order of the Court, as directed through Article 160 of the Qanun-e-Shahadat Order 1984, as under;

“160. Using, as evidence, of document production of which was refused on notice: When a party refuses to produce a document which he has had notice to produce; he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court.”

9.At this moment learned counsel for the petitioner states that he would have no objection against the order of learned Additional Sessions Judge (impugned herein) provided learned Magistrate may be directed to issue summon to CEO, TCS Pakistan, (Pvt), Head Office, Karachi for production of such certificates because they are not in possession of the petitioner any more. Learned counsel for the respondent No.4 responded that learned Magistrate has already issued summon to Manager TCS Sahiwal through letter bearing No.119/Ahlmad dated 13.03.2025. Though, needful has already been done, yet if Manager TCS Sahiwal expresses his inability to produce the alleged certificates, then learned Magistrate of course issue like notice to CEO TCS Pakistan, (Pvt), Head Office, Karachi. However, by the consent of portioner, now General Manager TCS company Sahiwal or CEO TCS Pakistan, (Pvt), Head Office, Karachi cannot refuse production of alleged certificates from their record, if available, because consent of petitioner put an obligation on them which is duly protected under Article 14 of the Qanun-e-Shahadat Order 1984 as under;

“14. Production of documents, which another person, having possession, could refuse to produce: No one shall be compelled to produce documents in his possession, which any other person would be entitled to refuse to produce if they were in his possession,

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unless such last-mentioned person consents to their production”.

(Emphasis supplied)

10.Thus, this criminal miscellaneous petition is disposed of with the observation that alleged certificates ultimately be summoned from the record of “Tranzum Courier Service”, commonly known as TCS Company (Pvt) Pakistan, Karachi as mentioned above. If any such record is not traced out or not produced, then respondent No.4 shall be at liberty to produce secondary evidence of such certificates in any of the forms, mentioned in Article 74 of the Qanun-e-Shahadat Order, 1984.

(MUHAMMAD AMJAD RAFIQ)

JUDGE

Approved for Reporting:

Judge

Signed on..................

Gulzar*