1997 PLP 2282 (MLD)

‑‑‑‑Art.134‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑ Competency‑‑‑Irregularities committed by Trial Court while recording statement of witness‑‑‑Remedy‑‑‑Constitutional petition was not proper remedy to challenge irregular order of Court and same would merit dismissal. Muhammad Ashraf Bhatti for Petitioner. Ghulam Muhammad Ebrahim for Respondent No.1. This application has become infructuous and is dismissed.

2. This Constitution petition is directed against the order of IIIrd Senior Civil Judge, Karachi (West) refusing to allow the petitioner's counsel to crossexaminer the Bank Officer who produced certain documents in Court in Suit No.833 of 1992. The reason for such refusal, as mentioned by the Court, was that the bank officer was summoned to produce these documents under Article 134 of the Qanun‑e‑Shahadat and, therefore, could not be cross-examined. The contention of the petitioner's counsel is that the Bank Officer was called as a witness and he produced the documents which were given exhibit numbers and taken on record and, therefore, he had a right to cross‑examine the officer. Mr. Ghulam Muhammad Ebrahim, Advocate for the respondent however, submits that the officer was called to produce certain documents under Article 134 of Qanun‑e‑Shahadat and, therefore, the petitioner's counsel had no right of cross‑examination. It appears from the record that one of the statement of the Bank Officer has been recorded as "deposition of witness NO.P.W.1 for the plaintiff", and is also on solemn affirmation. The second statement of the officer though not on oath, has been recorded as "deposition of witness No.P.W.2 for the prosecution". The documents produced by the Bank Officer were all marked with exhibit numbers. The procedure adopted by the trial Court was early erroneous. When a person is summoned to produce document under Article 134 of the Qanun‑e‑Shahadat he does not become a witness and, therefore, his statement should not be recorded as "deposition of witness" nor should be on oath. The documents produced by him should also not be marked with exhibit number but may be given identification number/mark. However, in spite of these irregularities, Constitution petition is not a proper remedy to challenge the impugned order and for this reason the petition is liable to be dismissed. Mr. Ashraf Bhatti, Advocate for the petitioner submits that he would not insist for the cross‑examination of the officer and would be satisfied if observation is made for treating the statement of the bank officer as that under Article 134 of the Qanun‑e‑Shahadat. Mr. Ghulam Muhammad Ebrahim, counsel for the respondent has no objection to the suggestion. However, I do not think that any such observation is necessary, for in the impugned order the trial Court has itself said that the statement of the bank officer was under Article 134 of Qanun‑e‑Shahadat. All that the trial Court needs to do now is to attach appropriate note to the statement of the bank officer in the light of my observation in the earlier part of this order and instead of giving exhibit numbers to the documents produced by the bank officer put identification numbers/marks on these for the present. With these observations the petition is dismissed in limine. A.A./P‑30/K Petition dismissed.