2009 PLP 526 (CLC)

RAFIULLAH SULTANI, J.

This revision petition is directed against the interim order passed by Additional District Judge Sensa Camp Kotli, dated 27-6-2007. Brief facts of the case are that petitioner filed a suit for specific performance against respondent which was pending in the Court of Additional District Judge, Sensa Camp Kotli. The case was fixed for evidence of petitioner/plaintiff on 27-6-2007. Petitioner's witness, Muhammad Azam Advocate, Notary Public, Kotli, appeared before the Court on above mentioned date of hearing and got recorded his statement with regard to attestation of document Exh.P.A. After that when the said witness was cross-examined by opposite counsel then he refused to sign the recorded statement and stated that he was not summoned by the Court and he was brought by the petitioner before the Court, on account of that he is not bound to make his signature. The learned Additional District Judge did not order to the said witness to sign on the recorded statement and merely wrote a note regarding witness's version that he was not ready to sign on his recorded statement. It was also written by the Court that validity of the recorded statement of witness will be judged at the time of final arguments, hence this revision. The learned counsel for the petitioner reiterated the grounds of revision and further contended that the learned Additional District Judge has not exercised his powers according to law. It was incumbent upon the Court to order the witness to sign on his recorded statement. The order of the Court is not speaking order. He referred to and relied upon Articles 15, 142, 143 and 161 of Qanun-e-Shahadat and prayed to accept the revision. The learned counsel for the non-petitioner defended the impugned order and further contended that the revision does not lie because no final order has been passed by learned Additional District Judge, Sensa Camp Kotli. Lastly, he prayed to dismiss the revision. I have heard the learned counsel for the parties and gone through the record carefully. The case in hand was fixed for the evidence of petitioner on cost on 27-6-2007. Muhammad Azam Khan Advocate, Notary Public, appeared before the Court and got recorded his statement regarding attestation of document (agreement) Ex. PA and he was cross-examined by the learned counsel for non-petitioner in lengthy manner. After recording his statement the said witness refused to sign on his recorded statement due to this reason that he was not summoned by the Court and he was brought before the Court by the petitioner. After the denial of witness to sign his statement, the learned Additional District Judge signed on the said recorded statement of witness and merely wrote a note regarding to refusal of witness in order-sheet on the recorded statement. Learned Additional District Judge, Sensa Camp Kotli, has not exercised his powers vested in him according to law. It was incumbent upon the Court to order the P.W. to sign on his recorded statement and if he disobeys the order of the Court then to adopt the procedure according to law, which has not been adopted by learned Additional District Judge, Sensa Camp Kotli. The witness was legally bound to sign on his deposition and the learned Additional District Judge was legally competent to order the witness to sign because the statement made by the witness has been read over to him and he has admitted it to be correct and signed by the Court, on refusal to it he will be guilty of an offence under section 180 of A.P.C. For proper perception I would like to reproduce section 180 of A.P.C., which reads as under:

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180. Refusing to sign statement.

Whoever refuses to sign any statement made by him, when required to sign that statement by a public servant legally competent to require that he shall sign that statement, shall be punished with simple imprisonment for a term which may extend to three months, or with fine which may extend to (one thousand five hundred rupees), or with both." Now, it is crystal clear that the P.W. was bound according to law to sign on his recorded statement as a witness and in case of refusal his penal liability arises because the said statement has been read over to him and he has admitted it to be correct and signed by learned Additional District Judge, Sensa Camp Kotli. The validity of the statement of witness is not doubted in any way because it has been signed by the Court. In view of above, this revision petition is accepted, the impugned order dated 27-6-2007 is set aside and learned Additional District Judge, Sensa Camp Kotli, shall summon the witness and order him to sign on his statement. In case of refusal he shall exercise powers vested to him by law as indicated above. Revision petition is accepted. H.B.T.25/H.C.(AJ&K) Petition accepted.