Friday, 12 February 2016

Right of cross examination in a family suit

PLJ 2015 Lahore 148
[Multan Bench Multan]
Present: Mahmood Ahmad Bhatti, J.
MUHAMMAD IRFAN--Petitioner
versus
W.P. No. 13718 of 2013, decided on 12.5.2014.
----S. 11(3)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Right of cross-examination of witnesses--Suit for jactitation of marriage--Witness could not be cross examined on account of preoccupation of counsel--Lawyers were observing strike--No mala fide could be ascribed to petitioner for adjournment--Validity--Conduct of defendant shows that he was not interested in making cross-examination--High Court cannot approve of following observation made in impugned order--Right of cross-examination has been provided for in Section 11(3) of Family Courts Act, 1964--It is most valuable right and if this right is be taken away, there must be compelling and sound reasons to exercise discretion against a party--It cannot be said that conduct of petitioner was such that Court was not to show his indulgence by allowing him further time to cross-examine witnesses produced by plaintiff, particularly when counsel for defendant/petitioner was in attendance when impugned order was passed--If witnesses produced by plaintiff are in attendance no further opportunity shall be provided to petitioner to carry out cross-examination.
                                                              [Pp. 150 & 151] A, B, C, D & E
Sardar Hameed Ullah Sikhani, Advocate for Petitioner.
Malik Khuda Bakhsh DoorAdvocate for Respondent No. 2.
Date of hearing: 12.5.2014.
Order
Through this writ petition, the petitioner assailed the validity of the order dated 24.07.2013 passed by the learned Judge Family Court. Taunsa Sharif, District Dera Ghazi Khan, whereby his right of cross-examination of the witnesses produced by Mst. Shaheen Bibi, Respondent No. 2/plaintifi was closed.
2.  The facts, in brief, are that Mst. Shaheen Bibi, Respondent No. 2 instituted a suit for jactitation of marriage against the petitioner. In the alternative, she asked for the dissolution of marriage on the ground of 'khula’.
3.  The petitioner put in an appearance and filed written statement, denying all the averments made in the plaint filed by Mst. Shaheen Bibi, the aforementioned.
4.  After framing the necessary issues, the Plaintiff/Respondent No. 2 was called upon to produce evidence in support of her assertions made in the plaint. As a result, she herself appeared as PW-1 and produced Ghulam Muhammad as PW2.
5.  The examination-in-chief of PW-1 and PW-2 was recorded on 11.07.2013. However, these witnesses could not be cross-examined on account of preoccupation of the learned counsel for the petitioner/defendant. Therefore, the hearing was adjourned until 17.07.2013. On 17.07.2013 the Lawyers were observing strike. Consequently, the cross-examination of the witnesses of the plaintiff could not be carried out, and the proceedings were adjourned to 22.07.2013. Again, on 22.07.2013, the Lawyers were not appearing before the Courts because of their observing the strike. Eventually, the hearing was put off till 24.07.2013. On 24.07.2013, the learned Judge Family Court seized with the suit did not allow the learned counsel for the petitioner/defendant to cross-examine the witnesses.
6.  In support of this petition, learned counsel for the petitioner contends that on the face of it, the impugned order is not sustainable in the eyes of law. It was passed in haste. He argues that on 24.07.2013, when the impugned order was made, he was in attendance, and his presence has been duly marked by the learned Judge Family Court, Tausna Sharif. He intended to cross-examine the witnesses, but he was not allowed to perform his duty. He makes the submission that probably the Court concerned was in a hurry to pass the final judgment and decree.
7.  Malik Khuda Bakhsh Door Advocate, learned counsel for Respondent No. 2 has refuted, rebutted and controverted the arguments made by the learned counsel for the petitioner. He has laid a greate deal of emphasis on the fact that a number of opportunities were provided to the petitioner to cross-examine the witnesses produced by the plaintiff. When the petitioner did not avail of those opportunities, the learned Judge Family Court, Taunsa Sharif had no option but to close his right to cross-examine the witnesses produced by the plaintiff. He concludes by making the submission that the petitioner has only himself to blame.
8.  I have heard the learned counsel for the parties and perused the record with their assistance.
9.  From the narration of the facts stated hereinabove, it is abundantly clear that on two occasions i.e. 17.07.2013 and 22.07.2013, the Bar was observing strike, which stood in the way of the learned counsel for the petitioner to carry out cross- examine of the witnesses produced by the plaintiff. In point of fact, the petitioner sought only one adjournment on 11.07.2013, when the testimonies of two witnesses, including the plaintiff were recorded. And the reason for adjournment was the preoccupation of the learned counsel for the petitioner, who was stated to be busy before other Courts. To put it differently, no mala fide could be ascribed to the petitioner for the adjournment sought on his behalf on 11.07.2013.
10.  It defies comprehension why the learned counsel for the defendant was not allowed to cross-examine the witnesses produced by the plaintiff on 24.07.2013. The contention of learned counsel for the petitioner that he had made an impassioned plea to allow him to conduct cross-examination of the witnesses in attendance, has not been rebutted. It has also not been recorded in the impugned order dated 24.07.2014 that despite his presence, the learned counsel for the petitioner had deliberately avoided or refused to carry out cross-examination of the witnesses in attendance.
11.  I have pored over each and every word used by the learned Judge Family Court in the impugned order. I am unable to appreciate the observation made in the impugned order that the conduct of the defendant shows that he was not interested in making the cross-examination of PWs. Furthermore, this Court cannot approve of the following observation made in the impugned order:
'Therefore, this Court inclined to close the right of the defendant'
Without indulging into niceties, suffice it to say that the inclination of the Court concerned was not to be the determining factor in passing the impugned order. The right of cross-examination has been provided for in sub-section (3) of Section 11 of W.P. Family Courts Act, 1964. It is most valuable right and if this right is be taken away, there must be compelling and sound reasons to exercise discretion against a party. In the facts and circumstances of the case. It cannot be said that the conduct of the petitioner was such that the Court was not to show his indulgence by allowing him further time to cross-examine the witnesses produced by the plaintiff, particularly when learned counsel for the defendant/petitioner was in attendance on 24.07.2013, when the impugned order was passed.

12.  The upshot of the discussion made above is that the impugned order dated 24.07.2013 passed by learned Judge Family Court, Taunsa Sharif is unsustainable, and the same is hereby struck down.
13.  In order to expedite the proceedings, the parties are directed to appear before the learned Judge Family Court, Taunsa Sharif on 27.05.2014. It is made absolutely clear that if the witnesses produced by the plaintiff are in attendance on the aforesaid date, no further opportunity shall be provided to the petitioner to carry out cross-examination. But in case they are not in attendance on the said date or the Court is not functioning on that date on account of the casual leave of the Presiding Officer, one further opportunity shall be granted to the petitioner for the aforesaid purpose.
14.  This writ petition is allowed in the foregoing terms.
(R.A.)    Petition allowed

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