1997 PLP 773 (MLD)

‑‑‑‑O XIII, R.2‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Plaintiff's application for production of third marginal witnesses in Court after closing of his evidence‑‑‑Entitlement‑‑‑Plaintiffs had sufficient opportunity to examine their evidence in Court below‑‑‑Two marginal witnesses had, in fact, been already examined besides one of plaintiffs‑‑‑Perusal of plaintiff's evidence showed that agreement in question, on basis of which suit had been filed was not produced in evidence through witnesses already examined‑‑‑Document to question was, thus, not put to witnesses to show that in fact same had been executed in their presence‑‑‑Plaintiffs had closed their evidence voluntarily, without bringing on record alleged document‑‑‑Document ill question having not been brought on record through marginal witnesses, application to produce another witness would appear to be an attempt to fill in lacuna in evidence examined at trial‑‑‑Courts below had rightly exercised their jurisdiction in disallowing application for examining another witness‑‑ Discretion exercised, by Courts below was well within law and did not appear to he arbitrary, capricious or unjust‑‑‑There was no latent or patent defect in impunged orders passed by Courts below so as to call for interference in extraordinary Constitutional jurisdiction of High Court‑‑‑Order of Courts below was maintained in circumstances. Tariq Muhammad Iqbal, Advocate. Brief facts leading to this writ petition are that petitioners /plaintiffs filed a suit for specific performance against respondents Nos. 3 and 4 i.e, defendants. It was contended in the suit that petitioners were the brothers of respondents, who had entered into an agreement of sale with them allegedly on 25‑3‑1993 in the presence of marginal witnesses namely Sardar Shah, Zahoor‑ul Hasan Shah and Zulfiqar. The consideration was fixed as Rs.4 lacs out of which 3 lacs were paid at the time of execution of the agreement whereas remaining Rs.l lac was to be paid at the time of mutation regarding the land in question, which measured 46 Kanals and 16 Marlas.

2. Petitioners/plaintiffs examined three witnesses which included two marginal witnesses namely Sardar Shah and Zulfiqar. The petitioners/plaintiffs thereafter closed the evidence. However, a petition for additional evidence was moved by the petitioners/plaintiffs to examine Syed Zahoor‑ul‑Hasan who was alleged to be a marginal witness of the agreement. That petition was resisted by respondents/defendants on the ground that the entire evidence has been closed and there was no justification to reopen the matter by examining the proposed witness namely Syed Zahoor‑ul‑Hasan. In this context it was submitted that other marginal witnesses namely Sardar Shah and Zulfiqar have already been produced. The petition was dismissed by Mr. Talib Hussain Chaudhry, Civil Judge, Arifwala on 16‑7‑1996. Revision filed against the aforesaid order was also dismissed by Mehr Salabat Khan, Additional District Judge, Arifwala vide his order, dated 1‑10‑1996.

3. In this writ petition both the orders have been challenged on the ground that the petitioners/plaintiffs have been debarred to produce a very important witness whose statement was allegedly crucial for the settlement of the dispute between the parties. In this respect, it was alleged that Syed Zahoor‑ul‑Hasan was a marginal witness of agreement on the basis of which the suit in question was filed. It was urged that failure to examine the aforesaid witness on the part of the petitioners/plaintiffs would result into miscarriage of justice.

4. After hearing the learned counsel for the petitioner and ongoing through the documents attached with this writ petition, I have come to the conclusion that the petitioners/plaintiffs had sufficient opportunity to examine their evidence in the Court below. In fact two marginal witnesses of the document have already been examined besides one of the petitioners/plaintiffs namely Muhammad Ali. The perusal of the evidence of all the three witnesses shows that the agreement has not been brought on record through those witnesses. It appears that the document in question was not put to the witnesses to show that in fact this has been executed in their presence. The petitioners/plaintiffs had closed their evidence voluntarily without bringing on record the alleged agreement.

5. In view of the above situation, it follows that since document regarding which Syed Zahoor‑ul‑Hasan is to be examined has not been brought on record, through other marginal witnesses, therefore, it seems to be an attempt to fill in the lacuna in the evidence examined at the trial. Since the document is not registered one nor it has been put to the witnesses earlier at the time of trial, therefore, without entering into the merits of this case, it would be just and proper to conclude that Courts below had rightly exercised their jurisdiction to disallow the application for examining Syed Zahoor‑ul‑Hasan as a witness. The discretion exercised by the Courts below is well within law and does not appear to be arbitrary, capricious or unjust. There is no latent or patent defect in the impugned orders passed by the Courts below so as to call for interference in the extraordinary writ jurisdiction of this Court. Consequently the writ petition is, dismissed in limine. A.A./M‑205/L Petition dismissed.