Non-Production of Marginal Witnesses in Execution of Pronote: Effect and Burden of Proof.
گواہ پیش نہ کرنے پر پرومسری نوٹ کا انجام
(2026 CLC 30)
تعارف
پرومسری نوٹ اور قانونی تقاضے
قابلِ قبول دفاع اور ثبوت کا بوجھ
گواہوں کی پیشی کی قانونی اہمیت
گواہ پیش نہ کرنے کا نتیجہ
شواہد میں تضادات
دستاویزی ریکارڈ کی کمی
قانونی مفروضے کا خاتمہ
حتمی نتیجہ
Must read judgement.
2026 CLC 30
Execution of negotiable instrument.
Marginal witnesses of negotiable instrument, non-production and effect
Question as to whether the two marginal witnesses are mandated to appear and prove the execution of the negotiable instrument (pronote) and what is the effect of non-production of the marginal witnesses.
Provision of the Art. 79 of the Qanun-e-Shahdat, 1984, comes into play only if a particular document is required by law to be attested---In the present case, the document-in-question was pronote which was not required by any law to be attested by two witnesses---Therefore, when a document was not required by any law to be attested, the failure to produce marginal witness was not fatal and detrimental to the case in such a situation where the defendant of a case under O. XXXVII, C.P.C., fails to put up a probable defence---However, said rule was not applicable in the present case, since appellant /defendant showed probable defence and the burden to prove had shifted back to the respondent on account of denial by him to have executed any pronote and/or the receipt, therefore, the respondent was obligated to prove the issuance and execution of the pronote by producing both attesting witnesses of the pronote---The respondent could have moved the Court to summon the said witness through process of Court and could have cross-examined him so as to prove his stance, however, no such effort was made---In such circumstances, an inference could be drawn that had said witness appeared before the Court, he would have deposed against the respondent and non-production of second attesting witness of the pronote was certainly fatal---Scanning of the evidentiary resume of the case revealed that animosity between the parties was admitted---Similarly, a plaintiff's witness also admitted that signatures of the appellant on the backside of pronote and the receipt were different---Another plaintiff's witness, who was a deed writer, deposed that the pronote was not recorded in his record and he was unable to produce any such record, and also admitted that amount mentioned in the pronote was not given to the appellant by the respondent in his presence---Such shortcomings were fatal for the respondent and had also escaped notice of the Trial Court---Absence of the second attesting witness of the pronote cum receipt and also the shortcomings in the oral and documentary evidence of the respondent propelled High Court to conclude that the presumption of correctness attached to the pronote was successfully rebutted by the appellant by putting forth probable defence and it was obligatory on the part of the respondent to prove the issuance and lawful execution of the pronote which the appellant failed to do.
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