FAROOQ AHMAD KHAN LAGHARI Versus NAWAZ SHARIF

ORDER

This order will dispose of C.M. N6s.23‑C and 24‑C o I f'1996. These vil miscellaneous applications have, not a smooth history. These have come to this Court in following circumstanc . es:

2. On 11‑1‑1995, Sardar Parooq Ahmad Khan, Leghari, President of Islamic Republic of Pakistan/herein respondent/plaintiff brought a suit for damages against Mian Muhammad Nawaz Sharif/herein petitioner/defendant in the Court of learned Senior Civil Judge, Islamabad. This suit was contested. Necessary issues were framed. Some evidence of the plaintiff/respondent ‑was recorded and the case was fixed for the statement of respondent/plaintiff on 14‑12‑1995. The petitioner filed four separate applications for the purpose of summoning of record mentioned therein and witnesses fully described therein. These applications Were contested and rejected by learned Senior Civil Judge on 6‑12‑1995. Feeling dissatisfied, the petitioner filed three civil revision petitions No. 914_915 and 016 of 1995 at the Principal Seat of Lahore‑High Court. These came up for hearing before 'my learned brother ' Munir A. Sheikh, J. on 10‑12‑1995 and were sent to my lord the Chief Justice of Lahore High Court, Lahore. In this way these petitions came up for hearing before my lord the Chief Justice on 13‑12‑1995. These petitions were returned to petitioner with a direction to file them at Rawalpindi Bench of this Court. This happened vide order dated 13‑12‑1995.

3. Pursuant to the above order, petitioner filed these petitions at Rawalpindi Bench which were numbered as 429, 430 and 431 of 1995. These petitions came up for‑hearing before a Division Bench of this Court comprising of my learned brothers Raja Abdul Aziz Bhatti and Muhammad Jaffar Hashmi, JJ. on 9‑1‑1996. On that date, it is stated at Bar. that, my learned brother Raja Abdul Aziz Bhatti, J. had stated that since his Lordship had been the Public Prosecutor against the petitioner before elevation, therefore, it was not proper for him to sit in the Bench. In the context of above, the petitioner filed three applications for the transfer of aforestated revision petitions from' that Division Bench to another Division Bench at Principal Seat. These applications carried Nos. 17‑C, 18‑C and 19‑C of 1996. These came up before my Lord the Chief Justice on I I‑ I ‑ 1996. During, the course of hearing, the learned counsel for the petitioner made a statement that he be permitted to convert revision petitions to applications for re‑hearing/reconsideration/review and the matter be ‑laid before me, as I was seized of the main suit in, persuance of the order of transfer passed by my learned brother Munir A. Sheikh, J. Raja Muhammad Anwar, learned counsel for the respondent, at that juncture, stated that the transfer application, in view of the above statement, had been tendered. infructuous. In that scenario. of the case, my lord the Chief Justice passed. the following order:

"3. 1 have heard the learned counsel for the parties at some length and perused their statements. As the case has been transferred to the original jurisdiction of the High Court by consent order dated 13‑12‑1995 passed in Transfer Application No.768/C/1995 whereby the. parties agreed that the trial be concluded at the Rawalpindi Bench of this Court within three months, it is desirable to avoid technicalities in the interest of expeditious disposal of the suit. It is, therefore, directed that Revision Petitions Nos.429, 430 and 431 of 1995 and 431/95 pending before the Division Bench of the Rawalpindi Bench of this Court be laid before my learned brother Mian Allah Nawaz, J.at the Rawalpindi Bench on 16‑1‑1996 for appropriate orders, in the light of the statement made by Mr. Muhammad Akrain Sheikh, Advocate, learned counsel for the defendant/petitioner.

As a result of above orders, the Revision Petitions Nos.429, 430 and 431 of 1995 were laid before me on 16‑1‑1996. On the above facts, I formed the opinion that the Revision Petitions were still pending adjudication before the Division Bench and it was not proper for me to deal with them. These Revision Petitions were accordingly directed to be put before my lord Chief Justice for proper order. Pursuant to this, these Revision Petitions were laid before a Division Bench, comprising of my learned brother Munir A. Sheikh, J. and Mrs. Nasira lqbal, J. After hearing the learned counsel for the parties and after going through the record of the case, the Division Bench came to the conclusion that C.M. 'Nos. 23‑C and 24‑C of 1996 have been filed before me and so the request of the learned counsel for the applicant/defendant for treatment of revision petitions as applications for re‑consideration/review, have become infructuous. It will be appropriate to reproduce the operative part of the order passed by the Division Bench:

"10. From the order dated 23‑1‑1996 passed by learned Single Judge portions of which have been reproduced above, on the two fresh applications made by the petitioner it is clear that the petitioner has already approached the Court in the suit. In this view of the matter, we are of the considered view that the request of the petitioner that the revision petitions may be treated as applications for reconsideration/review of the orders passed by the learned Senior Civil Judge impugned in the revision petitions and placed before the learned Single Judge as also the revision petitions themselves and the aforementioned civil miscellaneous application made under Order 23, rule 1 read with section 151, C.P.C. have become infructuous. The learned Single Judge as observed by keeping in view the rule of property for these revision petitions were pending before the Division Bench. The said applications shall' be decided by the learned Single Judge after hearing the learned counsel for the parties and any of the parties if would feel aggrieved, will be at liberty to seek remedy against the order passed by the learned Single Judge.

11. These revision petitions as also Civil Miscellaneous Application made under Order 23, Rule 1 read with section 151, C.P.C. and the request of learned counsel for treatment of the revision petitions as applications for re‑consideration/review of the order impugned in the revision petitions are hereby disposed of in limine as having become infructuous. "

These C.Ms. have, so, come up before me.

4. These applications were hotly debated. Mr. Muhammad Akrarn Sheikh, Senior Advocate of Supreme Court of Pakistan, appearing on behalf of applicant/defendant, opened the debate. He argued the case on 18th, 19th, while he was not feeling well on 20‑3‑1996 and therefore, the case was argued by Sheikh Asghar Hameed, the other learned counsel for the applicant/defendant. The arguments advanced by learned counsel for the applicant/defendant, can be summarised as below:

Firstly: that the suit filed by respondent/plaintiff related, to two Press Conferences addressed by Mian Muhammad Nawaz Sharif/defendant on 30‑4‑1994 and 31‑5‑1994. According to learned counsel, in these Press Conferences, there were some allegations with regard to purchase of cotton, Mehran Scandal and the purchase of land which was later on sold to Pakistan Civil Aviation Authority. It was further argued that foundational basis of respondent's action was that respondent/plaintiff had been forefront in National Politics as National Leader with unblemished image of high integrity, rectitude and honesty. The case of the other side was otherwise and so the* applicant/defendant was entitled to cross‑examine him with regard to his character. According to the learned counsel, Article 140 of Qanun‑e‑Shahadat (No.10 of 1984) hereinafter referred to as the 'Order' empowered defendant to confront plaintiff with his earlier written statement, which could show that his stand before this Court was inconsistent. Strength was further sought from Article 151, clause (3) of Qanun‑e‑Shahadat to demonstrate that the testimony of the plaintiff was not credible. In order to show the above official documents enumerated in C.M. No.23‑C of 1996 were relevant and were to be put to witness, in cross‑examination. According to learned counsel, these documents were in exclusive custody of the officials mentioned therein and were not within the reach of the applicant. On the strength of these circumstances, it was urged that it was necessary that these documents be summoned and be made available to him on the relevant date of cross‑examination.

Secondly: that in written statement, the allegations contained in para.3, 4 and 5 had been controverted, applicant was well within his right to prove his case and disprove the case of other side by proving the required documents by the medium of cross‑examination.

Thirdly: that our State is an Islamic Republic; that it was created on the basis of two nations theory; that our Constitution is based upon Islamic Ideology. It was further contended that the character of our Constitution is Federal with Parliamentary form of Government, that under this system, Leader of Opposition occupies a very high position and his constitutional duty is to subject the persons, who are at the helm of affair to phenomena of perpetual accountability On this view of the matter, it was suggested that no ' suit for recovery of damages could be filed against the applicant on the basis of press Conference addressed by him. According to learned counsel, Conferences were privileged. Fourthly: that the documents, mentioned in the applications, were aimed to prove the case set up in the written statement and the .applicant/defendant was entitled to prove them within the term of Articles 140, 141 " 142 and 143 read with Article 132 of the 'Order'. Fifthly: that the Division Bench had come to a conclusion that in view of the pendency of these applications, Revision Petitions Nos. 129, 130 and 131 of 1995 have become infructuous and so this Court was well within its right to hear these applications and decide the same. Reliance was placed on Salima Begum v. Sardaran Bibi PLD 1995 SC 406, Mst. Allah Rakhi v. Mst. Raj Bibi PLD 1957 (W.P.) Lab. 70, Bashir‑Ullah, Munshi v. Abdul Bari 13epari PLD 1969 Dacca 950, Muhammad Riaz v. 'The State PLD 1979 Lah. 155, Muhammad Sharif v. Suleman PLD 1981 Lah. 321, Manager, Jammu and Kashmir, State Property v, Khuda Yar PLD 1975 SC 678, Ghulam, Qadir v. Muhammad Sharif 1979 CLC 527, Mahadeo Mahto v. Hiralal Verma AIR 1991 Patna ',235, Subodh Chandra v. Sudhir Kumar AIR 1950 Calcutta 209 and Arjun Singh v. Mohindra Kumar AIR 1964 SC 993. Lastly: it was urged that the statement embodied in the required documents, was the statement of the plaintiff and so the I applications were based upon sound grounds. Sheikh Asghar Hameed, learned counsel, who had entered the debate on 19‑3‑1996, dealt with the scope of Article 14U with a lot of clarity. He contended that Article 140 of the 'Order' was applicable to the previous statements which were in black and white and which were to be put to witness for showing their inconsistency. He placed reliance upon K.A. Vish v. State of Maharashtra AIR 1971 SC 2256, Rama Reddy v. V.V. Giri AIR 1971 SC 1162, Balabhadra v. Nirmala Sundari Devi AIR 1954 orissa 23. Applying his submissions to th e prayers contained in C.M. No.23‑C of 1996, he argued that in item No.2, the summary which was submitted by Mr. Farooq Ahmed Leghari, the then Finance Minister, was his statement and it has recommended the remission of penalties. Similarly, ,he stated that the record concerning Mehran Bank Limited, including that of penalty, was also a statement made by him. He then argued that record relating to appointment of Acting Chief Justice, Judges, Ad hoc Judges, Acting Judges and Additional Judges of superior judiciary, were also the statements made by him. He then stated that the record mentioned against items Nos. 14 and 15 also contained statement of plaintiff/respondent and fell within the ambit of Article 140 of the 'Order'. As regards, the other documents, he contended that the officers in whose custody these documents were/are, were/are not supplying him those documents and so these documents could not be obtained by the 'applicant/defendant. As regards C.M. No.24‑C of 1996, he submitted that it related to the record of judicial proceedings but the same was not being supplied 'to him and so applicant was constrained to file the second application bearing.No.24‑C of 1996.

On the contrary, Raja Muhammad Anwar, learned counsel, while appearing on behalf of respondent/plaintiff, resisted the applications on following premises:

Firstly: That these applications, practically embodied the reliefs which were contained in previous applications and which were dismissed by the learned Civil Judge on 6‑12‑1995; that these were challenged by the applicant/defendant, by filing three revision petitions, 'namely, 429, 430 and 431 of 1995, which were dismissed as infructuous, by Division Bench vide order dated 1‑2‑1996. On these facts, it was canvassed that the order passed by learned Senior Civil Judge, dated 6‑1.2‑1995 had become final and the instant applications were barred by the principle of general res judicata. Reliance was placed upon Muhammad Ajmal Khan v. Lt. ‑Col. Muhammad Shafaat PLD 1976 Lahore '396, Rameshwat Singh v. Hitendra Singh A.I.R. 1924 P.C. 202, Sourendra Mohan Sinha v. Hari Prasad Sinha A.I.R. 1925 PC 180, Baldeo Dass v. Dharam Chand AIR 1944 Lah.262.

Secondly: that the learned counsel for the applicant/defendant had stated before , the learned Acting Chief Justice that he had moved the instant C. Ms. and so the revision' petitions be allowed to be treated as applications for re‑consideration or application for review. In this factual context, it was asserted that these C. Ms. were not original applications but they were in the form of review applications and were governed by Order XLVII, rules I and 2, C.P.C. According to the learned counsel, the scope of Review jurisdiction embodied in section 114 of C.P.C. read with Order XLVII, Rules I and 2 was limited and there were no circumstances for the exercise of such power in the instant applications .

Thirdly: that the documents required to be summoned were with regard to affairs of the State; have not been published anywhere and so they were privileged within the terms of Articles 6 and 7 of the Qanoon‑e ‑Shahadat and could not be summoned for the purposes of making them available for contradicting the plaintiff under Article 140 of the Qanun‑e‑Shahadat.

Lastly: it was urged that the case was at preliminary stage,; that the respondent/plaintiff had not still completed his evidence and the applicant/defendant will be well within his right to make an application for summoning these documents when he starts his evidence. According to learned counsel such applications, when moved, shall be decided by Court according to law.

From the foregoing, the following questions arise for determination:

(1) Whether the applications, in hand, are barred by the general principle of res judicata?

(2) Whether the required documents can be summoned within, the terms of Article 140 of Qanun‑e‑Shahadat?

(3) Whether the required documents form the part of unpublished record of the State and so these are privileged documents under Article 6 of the Order?

Before I proceed to deal with the first question, I find it necessary to examine the case‑law cited by the learned counsel for the parties. Thc first case, I would like to refer, is Maharajadhiraj Sir Rameshwar Singh BahadUr v Hitendra Singh AIR 1924 PC 202. In this case decree‑holder consented to appointment of receiver of judgment‑debtor's property in execution petition but later on he moved an application for removal of receiver on number ot ground,‑ The other ,side raised an objection that the application was barred by principle of res judicata.' This plea was upheld by all the forums including Privy Council. Dealing with this question, Lord Shaw said:

"It was strongly urged that a rigorous construction must be given to the provisions of the Civil Procedure Code and that the language of section I I of the Code of 1908 could not be applied to the present suit as it did not fall within the statutory words: 'Any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties ... ... ... ... and has been heard and finally decided by such Court'. It seems extremely doubtful whether there is any distinction whatsoever between the present and the former suits. But, in the construction of this section, as was the case also in the construction of section 13 of the Code of Civil Procedure of 1877, it has been long recognised that the principle laid down by Sir Barnes Peacock in Ram Kirpul Shukul v. Mt. Rup Kauri (1884) 6 All. 269 is correct, when the learned Judge said: ‑

'The question, if the terms 'res judicata' was‑ intended, as it doubtless was, and was understood by the full push, to refer to a matter decided by a Court of competent jurisdiction in a former suit, was ir relevent and inapplicable to the case. The matter decided by Mr. Probyn was not decided in a form suit, but in a proceeding of which the application in which the orders reversed by the High Court were made was merely a continuation. It was as binding between the parties and those claiming under them as an interlocutory judgment in a suit is binding upon the parties in every proceeding in that suit, or as a final judgment in a suit as binding upon them in carrying the judgment info execution. The binding force of such a judgment depends. not upon section 13, Act X of 1877, but upon general principles of law. If it were not binding there would be no end to litigation'.'

And recently before this Board in Hook v.* Administrator‑General of Bengal (1921) 48 Cal. 499 that rule was re‑affirmed.

There can be no real doubt that, in the course of the judgment in this case, two radical issues were definitely settled. First, that extinction of debt w as part of the scheme which was to be gradually operative, and, secondly, that the appellant, under the consent order, was bound to this gradual procedure. Their Lordships accordingly assent to the judgment of the High Court in‑ the passage above cited. That pronouncement, in their Lordship's opinion, was not made nor must it be taken in a sense which absolutely precludes, should proper occasion arise, a sale of the mortgaged properties by the Receiver. If the pronouncement has such a meaning or effect, then, in the opinion of the Board, it is erroneous".

6. The rule laid down in Maharajadhiraj Sir Rameshwar Singh Bahadur v. Hitendra Singh and others AIR 1924 Privy Council 202 supra was followed by Lahore High Court, in Mahafit Baldeo Dass v. Malik Dharern Chand AIR (33 1946 Lah. 462). In Yusuf v. Abdullah Bhoy AIR 1930 Bombay 294, it was however held that orders, passed by the Court in interlocutory matter, can be reviewed by that Court under section 151, C.P.C./i.e. inherent jurisdiction if the Court finds special circumstances ‑ on the doctrine of doing substantial justice between parties. IqN

7. 1 now come to a classic judgment rendered by his, Lordship Justice B. Z. Kaikaus (the then Judge of the erstwhile West Pakistan High Court Mst.Allah Rakhi v. Mst. Raj* Bibi and others PLD 1957 ' (W.P.) Lahore 70. In this case Mst. Allah Rakhi has filed a suit against four respondents with allegations that defendant No. I is not the legally‑wedded wife and defendants Nos. 2 to 4 were not the legitimate daughters of Bahadur (deceased). This suit was fixed for evidence of plaintiff on 23rd February, 1955. On that date, neither the plaintiff j nor his witnesses were present and, the 'request for adjournment was made. This prayer was refused by the. Court and the evidence of plaintiff was closed.. The Court then adjourned the case to 11th May, 1955 for the evidence of defendants. Meanwhile, the Presiding Officer of the Court‑was transferred. On the llth May, 1955, plaintiff moved an application for seeking permission to make her own statement as witness. This application was resisted. The learned Judge dismissed the application. This order was challenged by Mst. Allah Rakhi by filing revision. The learned Judge framed two questions: (1) whether Order XLVII, R. 1, C. P.C. applies to interlocutory order relating to Procedure; (2) whether there is inherent powers in the Court to review such order. The learned Revisional Court answered the both questions in affirmative. Dealing with both these questions it was held:

"It will be observed that this section mentions only a decree. Does it mean that at that time interlocutory orders, an ' instance of which I have already quoted, were not subject to review at all? It would not seem reasonable that although a final decree was liable to be reviewed if certain grounds existed, an interlocutory order, which is only a step in the proceedings that are to lead to a decree, and the need for reviewing which order may frequently. arise, was not liable to be reviewed at all. There is no reason, ‑at the same time, to hold that in 1859 the position in India with respect to an amendment or alteration of any order relating to mere procedure was different from what it was in, England. In England there. was inherent jurisdiction in a Court t vary orders relating to mere procedure. I quote below extracts from Volumes 19 and 26 of Halsbury Law as which relate to this subject ,

Para. 570, Volume 19,‑‑‑ In matters of practice and procedure every appeal from a Judge should be to the Court of appeal, and an order made in a matter of practice and procedure cannot be discharged, either by the Judge who made the order or by the Divisional Court; but in that case of matter of mere procedure, a Judge or master has powers, where new facts are brought before him which shows that the following out of the precise directions of that previous order' will cause what he considers inconvenience or other injury to the parties, to give directions that, notwithstanding a previous interlocutory order, ‑a different mode shall be adopted of carrying into effect the substance of the previous order. But the Judge or master has no similar power in the case of an interlocutory order by which the right of the parties have been decided.

An order made ex parte may be set aside by a party affected by it on an application being made to the Judge who made the order.

Note(n), page 84, Volume' 26.‑‑‑An interlocutory order may be set aside on the ground of fraud or mistake; or where counsel has exceeded his authority. But a finM judgment can only be set aside by judgment in a fresh action. "

Although the first passage quoted above has reference to the Judicature Act of 1925, the case's to which it refers are of a much earlier date and there can be no doubt that whit is contained in the Judicature! Act of, 1.925 only reproduces a principle which had already been accepted. In section 31 of the Judicature Act of 1925, it is provided that a Judge can review while sitting in Court such orders as have been passed in chambers. I may state that all orders relating to procedural matters can be passed in chambers..

I would mention here that in England as well as in pre‑partition India it was regarded as an establishment rule that after passing an order a Court had no jurisdiction to review it in ‑absence of a statutory provision to that effect. I refer in this connection to Anantharaju Shetty v. Appu Hegade AIR 1919 Mad * 244, where English cases too are cited. But all the cases which say there is no jurisdiction to review in the absence of specific provision relate to orders passed on the merits and have no application to the setting aside of an interlocutory order relating to mere procedure, the legal position with respect to which was as appears from Halspury.

I have no doubt that at the time when the first Civil P.C. was enacted there was an inherent jurisdiction in the Courts to review such interlocutory order or rather to pass a different order in spite of a previous order. Now, could it be said that in 1877 when the Civil P.C. was amended and (new section was 623) the word "order" introduced, the intention was to take away the inherent jurisdiction which existed for a review of an interlocutory' order relating to procedure and to confine it within the strict limit of Order XLVII? The reason for the Corporation in section 623 of the Civil P.C., 1877, of "Order" was, it appears to me, the interpretation put by the Courts, in some cases, on section 376 of Act VIII of 1859, holding that in spite of the fact that the word "decree" only was mentioned in section 376 it did apply even to orders which were technically not decrees. In Deen Dayal Puramanick v. Ram Coomar Chowdhry and others 10 Suth WR 345, the High Court reviewed its own order saying that though section 376 mentioned only decrees, it had always been held to authorise reviews of order which are, strictly speaking, not decrees. The learned Judges relied for this proposition on a previous Full Bench ‑ case Haradhon Mookerjee v. Chudner MQhun Roy Special No. Weekly Reporter 66. Similarly in Syed Lotf Ali Khan v. The Court of Wards on behalf of Maharaja of Durbhanga 6 Suth WR 8 Cal. 63 following the same Full Bench it was held that an order in execution was also covered by the provision of section 376. 1 am of the opinion that the amendment was intended to give effect to these judgments and not to take away the inherent power of Court which respect to procedural matters.

The conclusion that there is inherent power, in a Court to vary, alter or amend orders relating to mere procedure finds further support from Order XVIII, rule 2, Lahore amendment which empowers the Court to summon a witness even though the parties have closed their cases and it may be asked why instead of determining the applicability of Order XLVII. I do not base my decision in the present case on this rule. My answer is that I would not ,place this cast on the footing,' that but , for the Lahore amendment to Order XVIII, rule 2, there will be no power in the Court to alter an order relating to the appearance of a witness. The Lahore amendment to Order XVIII(2) only recognizes the inherent power which already exists in the Court and not intended to confer a new power. The amendment is in the following words:

"At the end of rule 2, insert the following Explanations.

"Explanation I.‑‑Nothing in this rule shall affect the jurisdiction of the Court, of its own accord or on the application of any party for reasons to be recorded in writing to direct any party to examine any witness at any stage.

Exvlanation II.‑‑The expression 'witness' in Explanation I shall include any party as his own witness. "

This amendment, it will be observed, is in the form of an Explanation. It is by itself, at the same time a strong arguments against interpretation that Order XLVIL rule I applies even to orders relating mere procedure. "

8. The view taken in Mst. Allah Rakhi v. Mst. Raj Bibi and others PLD 1957 (W.P.) Lahore 70 supra, was followed by Dacca High Court in Bashirullah Munshi v. Abdul Bari Bepari and others PLD 1969 Dacca 950, by Supreme Court in Arjun Singh v. Mohindra Kumar AIR 1964 SC 993, Amanullah Khan and, others v. Khurshid Ahmad PLD 1963 (W.P.) Lahore 566 and Divjsion Bench of this Court Ghulam Qadar and others v. Muhammad Sharif and others 1979 CLC 527.

The ratio deducible from the foregoing discussion is that:

The general principles of res judicata do not govern the interlocutory/interim orders passed by Court in procedural matters. Although, the Court ordinarily discourages the successive applications on these matters, yet the Court has inherent jurisdiction to amend/alter or change such orders after taking into peculiar circumstances of each case. Even the Courts had the power under section 114 of C.P.C. read with Order XLVII, rules 1 and 2 to review such order.

(ii) The proper place of procedure, in the administration of justice is to help and not to frustrate the grants of right to litigant. All the technicalities have to be Avoided and calls doing substantial justice between the parties or to be heeded. See lintiaz Ahmad v. Ghulam Ali arid 2 others PLD 1963 SC 382.

(iii) That Qanun‑e'Shahadat, is' an adjective law. It is the compendium of rules of procedure/practices according to which the Court is to record the evidence of the parties. It prescribes rules/method With regard to recording of evidence of parties.

9. Applying the above principles to the facts and circumstances of the applications in hand, it is quite clear to me that these pertain to a procedural matter;. these seek the summoning of the documents alongwith their custodian/officials. The reliefs, claimed in these C. Ms. are substantially the same which were asked for in previous applications and which were rejected by order dated 6‑12‑1995 by the learned .,Senior Civil Judge, Islamabad. The main case of the applicant is that the learned Senior Civil ' it Judge had not attended to his contentions in true perspective and the case was not heard properly. The order passed by learned Senior Civil Judge dated 6‑1~4995 was challenged by the applicant in revision petitions but the ‑same were dismissed by. the Division Bench of the Court as infructuous. This happened vide order dated 1‑2‑1996 on the premises that the instant applications have ‑ been moved before this Court.

Without going into the history of ,the revision petitions and ‑their final fate, it becomes clear that the learned Division Bench formed opinion that it was proper that the instant applications be dealt ‑with on merit. These are special and distinctive features of the applications in hand. Following the rule of judicial dignity, I am bound by the order of Division Bench 'Taking into consideration the aforestated distinctive features of these applications, I am of a considered view that the order of teamed Senior Civil Judge dated 6‑12‑1995 is not a bar to decisions of these applications. I accordingly find that the principle of general res judicata is not attracted to the facts of these applications.

10. Having dealt with the first question, I now turn to second one. Answer to this question hinges upon Article 140 of the 'Order'. It reads as follows:

"140 Cross‑examination as to vrevious statements in writin .‑‑A witness may be cross‑examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the, writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

A bare look at this Article indicates that this provision enacts that a witness may be cross‑examined as to his previous statement in writing with an intention to contradict the inconsistency in h is statement made in Court. This Article prescribes that his attention must be drawn to that part of previous statement, which is intended to be contradicted. The underlying objectives of this Article are two‑fold: firstly, that the witness is given opportunity to explain the inconsistency between statement in Court and his previous statement. and secondly, it equips the other side to impeach the veracity of witness by showing that the person was not credible. this Article, ‑as already noted, pertains to cross‑examination. This Article is to be read with Article 151(3) of the 'Order

Although, these two Articles cater for different aspects, yet the aims of both are overlapping. Article 151(3) ibid, states that credit of witness may be impeached by proof of former statements which are inconsistent with any part of his statement in Court. The objective of this Article is to demonstrate that the person in the witness‑box is not creditworthy. Article 151(3) ibid, however, does not provide the manner of proof of earlier inconsistent statement, while the

Article 140 of the Order provides such machinery. The objectives of these two

Articles were explained by Professor Wigmore . in his celebrated treatise Law of

Evidence in following‑a words:‑

"Is the same as that of, the preceding sort,. namely, to show the witness to be in general capable of making errors in his testimony; for upon perceiving that the witness has made an erroneous statement upon one point we are ready to infer that he is capable of making an error 'upon other points.

11. From the above study of Articles 140 and 151(3 ) ibid, it becomes evident to me that a witness, who enters the witness‑box, can be cross‑examined as to his previous statement, made by him in writing or reduced into writing, by the other side and that witness is to be given opportunity after seeing the inconsistent statement, to explain the same. This is in all the purport and substance of Article 140 ibid

In the light of the above analysis of articles 140 and 151(3) of the 'Order', I now turn to merits of C.Ms. Nos,23‑C and 24‑C of 1996, As regards C.M. No.23‑C of 1996, it is prayed therein that the documents mentioned in Items Nos.1 to 19 be summoned from the officials mentioned therein and 4e made available to applicant for the purpose of putting them in cross examination, A close study of these documents, show that the required documents mentioned in item No.1, item No‑2, sub‑item (2), item 'No.4, Item No.8, Item No.9, Item No.10, Item No.11, Item No.12, Item No.13, Item No.17, Item No.18 and Item No.19, do not contain any statement in writing made by the respondent/plaintiff. This was very fairly conceded by Sheikh Asghar Hameed, learned counsel, while appearing on behalf of applicant on 20‑3‑1996, These documents form the part of unpublished record of the State, which has been prepared by the concerned functionaries of the State. These documents, therefore, in my humble estimation, cannot be put to the respondent/plaintiff under Article 140 ibid. This being the position, I am not required to further go in the matter and find that the application for summoning aforementioned documents for the purpose of putting to respondent in cross examination, is wholly misconceived and the prayer contained therein cannot be accepted by recourse to any principle of law. For the above reason, the application/C.M. 13‑C of 1996 is rejected to that extent. Now I will come to ducuments mentioned in sub‑item (I of Item No.2, Item No.3, Item No.7, Item No. 14, and Item No. 15. In so far as sub‑item (1) of Item No.2 is concerned, the summary submitted by Mr. Farooq Ahmed Khan Leghari, the then Finance Minister, is sought to be summoned. Undeniably the summary was submitted by the respondent/plaintiff as a Finance Minister of Pakistan. It pertains to part of unpublished record of State., So it is clearly protected under Article 6 of the 'Order' being privileged document, which cannot ' be allowed to put to respondent/plaintiff in cross‑examination. Its production is subject to privilege and the Court ordinarily is first to examine the question of privilege, when the same is claimed by the custodian ‑of the document. The record summoned through Item No.3 is of vague nature and so this prayer also cannot be acceded to. Similarly, I am not persuaded to‑ summon record relating to appointment of Acting Chief Justice, Judges, Ad hoc Judges, Acting Judges, Additional Judges of superior judiciary. These documents are privileged documents and they cannot become a subject‑matter of being put to witness under Article 140 of the 'Order'. The record relating to Registrar of Commission of enquiry into Mehran Bank Limited Scandal also is a privileged document. This matter was probed by a very high Commission and its findings have not so far been published by the concerned quarter. This being the position, the request to that extent also cannot be allowed.

13. The only documents now left for examination are embodied in Item No. 12, No. 15, sub‑item No. 14 of Item No. 16. They relate to payments, allegedly received by respondent/plaintiff. These documents have some nexus with the controversy in suit (it is tentative assessment). Even the learned counsel for the applicant was not able to specify the document which contained the statement of respondent. It was, however, asserted that the concerned officials were not providing record of these documents by pressing into service banking practice. The case of the respondent/plaintiff was that these were wholly irrelevant. It has already been noted that the case is to be heard from day to day after 16th April_ 1996 in consonance with the commitments of the parties.

Although, it is still to be determined whether these documents do contain any statement which can be put under Article 140 ibid, to the respondent/plaintiff, yet I am inclined to summoning these documents/record in the interest of justice. Taking that circumstance into consideration, accept prayer made in the application to the above extent. The concerned officials are directed to make available record mentioned in Item No. 15.

14. Having disposed of C.M. No.23‑C of 1996, now I take up C. M. No.24‑C of 1996. The applicant, through this application, seeks the summoning of record of suit titled "Hoechest Pharmaceutical (Pvt.) Ltd. v. Ghazi Agro Chernicals‑Dera Ghazi Khan and others", from the Record Room of learned District and Sessions Judge, Multan. Suffice it to say that this application is misconceived. The record of the suit forms part of judicial record. The. documents mentioned‑ in this application are public documents. Applicant Is e ntitled to get the necessary/requisite copies from the concerned cop ying Agency. So it is not necessary to summon that record. For the above reason, this C.M. No. 24‑C of. 1996 is found to be wholly devoid of any force and is accordingly rejected.

15. As a result of the above conclusion, C.NT. No.23‑C of 1996 is disposed of in following term: it stands rejected with regard to documents mentioned in Item Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18 and 19. The same is partly allowed with regard to Item No.15. The official incharge of record of National Bank of Pakistan. Corporate Branch. Relinian Plaza Snahra‑eFatima Jinnah, Lahore, shall make available the records mentioned therein on the next date of hearing. This order shall be subject to further condition that the question as to whether the documents mentioned therein are relevant for the purposes of cross‑examination within the ambit of Article 140 of the 'Order'., shall be determined at the relevant time. The record shall be made available, as already noted, in consonance with the dictates of doing justice between the parties and for the purpose of finalizing the hearing of the case as wanted by the parties. C.M. No.24‑C of 1996 is rejected as meritless. While parting with this order I need not emphasise that all the findings contained in this order are only germane to the controversy as to whether the documents! are necessary for the purpose of putting them to respondent/plaintiff in cross‑examination.

A.A./F‑8/1,