MUHAMMAD HUSSAIN Versus TANZEELA BANO

. ORDER

Instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is directed against the orders, dated 24‑3‑1999, 23‑4‑1999 and 9‑7‑1999 passed by the Courts below.

2.Briefly stated the facts are that plaintiff/petitioner filed a suit for administration of estate of his deceased son Saeed Ahmad which was pending in the Court of Rai Nazir Ahmad, Civil Judge, Lahore. On 24‑3‑1999 the matter was fixed for recording statement of defendant/respondent Mst. Tanzeela Bano, when her brother Muhammad Javed appeared as her attorney and recorded his statement as D.W.2. Learned counsel for the plaintiff/petitioner was asked to cross‑examine the said witness. He refused to cross‑examine the said witness on the ground that Mst. Tanzeela Bano had not appeared in the Court to record her statement. His objection was turned down and he was asked by the Court to cross‑examine the said witness. He (learned counsel for the plaintiff/petitioner) was further informed that he should cross‑examine the said witness (D.W.2) and if the Court found necessary Mst. Tanzeela Bano be examined as a Court‑witness. However learned counsel for the plaintiff/petitioner did not cross‑examine the said witness and consequently his right of cross‑examination was closed by the trial Court. Upon this plaitniff/petitioner moved an application dated 8‑4‑1999 wherein he stated that he never refused to cross‑examine D.W.2, but simply objected his authority to appear as witness and prayed that his right to cross‑examine be restored. This application was contested by the other party and was finally dismissed vide order, dated 23‑4‑1999. The plaintiff/petitioner felt aggrieved of orders, dated 24‑3‑1999 and 23‑4‑1999 and filed a revision petition. The said revision petition was also dismissed vide order, dated 9‑7‑1999. The plaintiff/petitioner has now challenged all the three orders, dated 24‑3‑1999, 23‑4‑1999 and 9‑7‑1999 by means of instant writ petition and has prayed that the same be set aside.

3.Arguments have been heard and record perused.

4.Contention of the learned counsel for the plaintiff/petitioner is that both the Courts below have not passed the impugned orders in accordance with law. He submits that on 9‑3‑1999 the trial Court had adjourned the matter to 24‑3‑1999 for recording statement of Mst. Tanzeela Bano, that on 24‑3‑1999 Mst. Tanzeela Bano did not appear and produced Muhammad Javed, that only the authority of Muhammad Javed to appear as D.W.2 was challenged and had never refused to cross‑examine him. He submits that plaintiff/petitioner cannot be penalised for any negligence on the part of his counsel. Regarding maintainability of writ petition he relied upon Mst Anwar v. Imam Din and another (1997 MLD 461).

5.A perusal of record reveals that on 24‑3‑1999 the matter was fixed for recording statement of Mst. Tanzeela Bano, when her brother D.W.2 Muhammad Javed appeared as her attorney and recorded his statement. Learned counsel for the plaintiff/petitioner was asked to cross‑examine the said witness but he refused to cross‑examine the said witness on the ground that as Mst. Tanzeela Bano had not appeared so he would not cross‑examine the witness. Upoq this trial Court directed the learned counsel that he should cross‑examine the witness. And if the Conrt found necessary Mst. Tenzeela Bano may be examined as Court‑witness. Even then he did not cross‑examine the witness. Accordingly trial Court was constrained to close the rights of cross‑examination and adjourned the case for arguments. The matter was again agitated by the plaintiff/petitioner on 8‑4‑1999 through an application wherein he asserted that he never refused to cross‑examine but simply challenged the authority of D.W.2 to appear as her attorney and submitted that his right to cross‑examine be restored. This submission did not find favour with the trial Court as well as revisional Court and consequently his prayer was declined vide orders, dated 23‑4.‑1999 and 9‑7‑1999. All these facts clearly show that trial Court had granted maximum latitude to enable the learned counsel to cross‑examine D.W.2, but he failed to encash said opportunity.

6.The upshot of above discussion is that impugned orders have been passed by the Courts below in exercise of jurisdiction vested in them and these orders do not suffer from any illegality or irregularity warranting the exercise of Constitutional jurisdiction of this Court. Accordingly writ petition fails and is hereby dismissed. However, it is made clear that the trial Court shall not be influenced by this order while disposing the matter on merits.

Q.M.H./M.A.K./M‑1208/L

Petition dismissed,