2022 PLP 868 (YLR)

RAZA ALI KHAN, J.

The captioned appeal by leave of the Court arises out of the order dated 1.10.2019 passed by the Azad Jammu and Kashmir High Court in Writ Petition No.355 of 2018.

2. The brief facts forming the background of the captioned appeal are that the plaintiff-respondent No.3, herein, filed a suit for grant of perpetual injunction in the Court of Civil Judge Dadyal on 30.11.2012. It was alleged by the plaintiff that a piece of land comprising Khasra No. 226 measuring 2 kanal situated in village Sahalia has been purchased by him through an agreement-to-sell. It was averred that the defendants (appellant and respondents Nos.4 and 5, herein) are bent upon to interfere in his possession, therefore, they may be restrained from doing so. The case was at the stage of recording of the evidence of the defendant/appellant, herein, when the counsel for defendants-respondents Nos. 4 and 5, herein, filed the application for granting permission to cross-examine the defendant/appellant, herein. The trial Court vide its order dated 20.7.2018 allowed the application and fixed the case for recording the evidence of the petitioner, herein, on 27.8.2018. During the pendency of the suit before the trial Court, the appellant, herein, filed a revision before the Additional District Judge Dadyal on 25.8.2018 against the order dated 20.7.2018 passed by the Civil Judge Dadyal. The Additional District Judge, after necessary proceedings vide judgment dated 16.10.2018 while dismissing the revision petition upheld the order of the Civil Judge Dadyal. Feeling aggrieved from the said order of the Additional District Judge Dadyal, the appellant, herein, filed a writ petition before the High Court on 29.10.2018, which has been dismissed in limine through the impugned order dated 1.10.2019.

3. Sardar Muhammad Azam Khan, the learned Advocate appearing for the appellant argued that the orders passed by the Courts below are against law and the facts, therefore, the same may be set aside. He argued that the Courts below, while allowing the application filed by respondents Nos. 4 and 5, herein, for permission to cross-examine the defendant/ petitioner, herein, have not considered the statutory provision of Article 133 of the Qanun-e-Shahadat Order, which postulates that only the plaintiff has a right to cross-examine the defendant and the co-defendant have no right to cross-examine the defendant, but this legal point was not attended and resolved neither by the Additional District Judge nor by the learned High Court, therefore, the impugned order is liable to be dismissed.

4. Conversely, Ch. Muhammad Ashraf Ayaz, the learned Advocate appearing for the respondents Nos. 4 and 5, forcefully defended the impugned judgments of the Courts below and argued that the orders passed by the Courts below are quite in accordance with law. He further argued that the writ petition filed before the High Court by the appellant, herein, involved question of the facts, hence, the same was not competent, therefore, has rightly been dismissed in limine by the learned High Court. He further argued that the appellant has filed this appeal with mala fide intention just to prolong the case, hence, the same merits dismissal.

5. We have heard the learned Advocates representing the parties and have gone through the record of the case made available along with the impugned judgments of the Courts below. Liaquat Ali, respondent No.3, herein, filed a suit for perpetual injunction against the appellant and private respondents, herein, in the Court of Civil Judge, Dadyal. Appellant-defendant No.1 filed written statement separately, whereas, appellants Nos. 4 and 5 herein, (defendants Nos.2 and 3) filed written statements jointly. The case was at the verge of recording of evidence, when respondents Nos. 4 and 5, herein, filed an application for grant of permission to cross-examine the appellant, herein. The Civil Judge Dadyal, vide order dated 20.7.2018, allowed the application by assigning the reason that from the written statements filed by defendant No. 1 and defendants Nos. 2 and 3, a contradictory stand and conflict of interest between the co-defendants has arisen. This order of the Civil Judge was challenged up to the learned High Court, which remained upheld. The question which now emerges for consideration is that whether a co-defendant can cross-examine the defendant specially when conflict of interest arises among them. The learned Advocate for the appellant has submitted that under Article 133 of the Qanun-e-Shahadat Order, 1984, only plaintiff has a right to cross-examine the defendant and the co-defendants have no right to cross-examine the defendant. It is undisputed that no special provision is made in the Qanun-e-Shahadat Order, 1984 for cross-examination of the co-defendant/co-accused's witnesses, the only relevant provision of law is Articles 132 and 133, which refers to examination-in-chief and cross-examination of witness by the adverse parties. The question is that who is adverse party so far as the witness is concerned, Black's Law Dictionary defines it as under:-- "Adverse party. A party whose interests are opposed to the interests of another party to the action." Article 132(2) of Qanun-e-Shahadat Order, 1984 postulates that examination of a witness by the adverse party is cross-examination. Article 133(1) of Qanun-e-Shahadat refers to cross-examination if the adverse party so desire after the witness is first examined in chief. These two provisions of Qanun-e-Shahadat Order make it clear that a party has a right of cross-examination if feels adversely affected. As a general rule, evidence is not legally admissible against a party who at the time it was given, had no opportunity to cross-examine the witness who recorded such evidence. It is now well settled principle of law that no evidence should be read against one who was not given opportunity of testing it by cross-examination. On the basis of same principle, it would be unjust, unfair and unsafe not to allow a co-defendant to cross-examine a witness called by the other co-defendant whose case was adverse to him, produce evidence which incriminates other defendants, thus later have a right to cross-examine those witnesses. If there is no conflict of interest, then such an opportunity needs not to be given. Therefore, the condition precedent for giving an opportunity to a co-defendant to cross-examine the other co-defendant is that there should exist conflict of interest between them either from the pleadings or during the course of evidence. Once it is demonstrated that their interests are not common or there is a conflict of interest and evidence has been adduced affecting the interest of co-defendant then the Court cannot rely on that evidence without giving the opportunity of cross-examination to the party affected by it. The person against whom the evidence is given should have opportunity to cross-examine the said witness, so that ultimately, truth may emerge, on the basis of which the Court can decide the matter. The same proposition came under consideration of the Supreme Court of India in the case reported as Sadhu Singh v. Sant Narain Singh Sewadar and others (AIR 1978 Punjab and Haryana 319) whereby the stance taken by the co-defendants were unidentical and the Court allowed defendant-petitioner, therein to cross-examine his codefendant. Paragraph 10 of the referred case is relevant, which is reproduced as under:- "

10. The purpose of cross-examination is to test the veracity of the testimony of a witness. Under issue No.4, reproduced above, it is relevant to find out whether Hazoori service of the last Mohatmim is an essential ingredient or not for becoming eligible for appointment as a Mohatmim of the Gurdawara. On this particular point the stands taken by Sadhu Singh, defendant-petitioner on one side and remaining defendant on the other side, are not identical. Their stands on this point are rather contradictory. It cannot be said that the point of Hazoori service has no relevancy for the purpose of a just decision of the suit. Parties arrayed as defendants in the suit, having taken contradictory stands on a relevant and material issue, shall be adversary to each other and entitled to exercise their right of cross-examination against each other. Sadhu Singh, defendant-petitioner, therefore, had a right to cross-examine his co-defendant Inder Singh and it was wrongly disallowed by the trial Court." Thus, the argument of the counsel for the appellant that the co-defendants have no right to cross-examine the defendant, has no substance, which is hereby repelled. The Civil Judge, Dadyal, has rightly allowed the application for permission to cross-examine the co-defendants and the learned Additional District Judge as well as the learned High Court while upholding the order of the Civil Judge has committed no illegality. The appellant has failed to point out any illegality or legal infirmity in the impugned judgment. The result of the above discussion is that finding no force in this appeal, it is hereby dismissed with no order as to costs. SA/20/SC(AJ&K) Appeal dismissed.