2011 PLP 777 (YLR)

IJAZ AHMED J.

The resume of the facts necessitating the filing of the instant petition are that respondents Nos.1 and 2 instituted a suit for Possession, Partition of the property, rendition of the accounts and Mesne Profits. The petitioner was arrayed as defendant No.1 therein. After examination of all the witnesses of the plaintiffs, the defendant produced his evidence. Sheikh Umar Farooq, the defendant appeared as DW-3. He was examined on 13-11-2009 and cross-examined on 9-1-2010. The petitioner submitted an application for recalling himself and for being re-examined as some portion of his statement was not reconcileable with the earlier portion of his statement and an ambiguity had arisen which required clarification. The learned Civil Judge, Taxila, vide order dated 8-6-2010 dismissed the application. The revision petition was also dismissed by the learned Additional District Judge, Taxila.

2. It is argued by the learned counsel for the petitioner that such an application can be made under Order XVIII Rule 17, C.P.C, which provides that re-examination of a witness is permissible under the law of evidence; that under Article 133 of the Qanun-e-Shahadat Order, 1984, re-examination shall be directed to the explanation of the matters referred to in the cross-examination. Reliance is placed on 2005 SCMR 152 titled "Anwar Ahmad. v. Mst.Nafis Bano through legal heirs", PLD 2001 Supreme Court 518 titled "Qamar-Ud-Din v. Muhammad Din", to argue that re-examination is permissible and that a constitutional petition is maintainable against, an order passed in revision petition.

3. On the other hand, the petition is opposed by the learned counsel appearing on behalf of the respondents. It is argued that no ambiguity has arisen in relation to the matters referred to in cross-examination and that the portion of the statement made by DW-3 in cross-examination referred in the application is reconcilable with the rest of his statement and that, had there been any ambiguity which required a clarification, such an application could be made promptly, The application made on 17-4-2010 for re-examination of DW-3, almost 3 months after recording of his statement is a device to frustrate the trial of the case. It is argued that in such circumstances, the recalling of the DW-3 and his re-examination is not warranted by law. He places reliance on 1997 CLC 763 titled Messers Ilyas Marine and Associates Ltd. v. Muhammad Amin Lasania and another. He also argues that a constitutional petition against an order passed in revisional jurisdiction is not maintainable. He places reliance on 1993 SCMR titled 618 titled Muhammad Younus Khan and 12 others v. Govt. of N.-W.F.P. through Secretary, Forest and Agriculture, Peshawar and others.

4. I have heard the learned counsel for the petitioner and have also gone through the record.

5. The portion of the statement referred by the learned counsel for the petitioner in his application seeking the recalling of the witness carries no ambiguity and is reconcilable with the rest of his statement. The application filed after three months of the recording of his statement is a device to frustrate the trial of the case. Moreover, the constitutional jurisdiction of this Court cannot be availed as an additional remedy after exhausting the statutory remedies provided under law. I seek support from the judgments referred by the learned counsel for the respondents. This petition has no force. It is, hereby, dismissed. A.R.K./U-1/L Petition dismissed.