2004 PLP 635 (MLD)

Zulfiqar Ali Abbasi for Respondents. Date of hearing: 20th November, 2003. With the consent of both the learned counsel for the parties, this petition is admitted to regular hearing.

2. This Constitutional petition has been directed against the order dated 15-9-2003 passed by the learned Senior Civil Judge, Islamabad exercising power of Family Judge allowing the petition of the respondents for summoning of Maulana Ghulam Ahmad, Nikah Khawan/Nikah Registrar, Mardan.

3. Briefly the facts relevant for the disposal of this Constitutional petition are that the petitioner filed an application under section 25 of the Guardians and Wards Act, 1925 for the custody of two minor sons and a daughter. The respondent filed her written reply and opposed the petition. She pleaded that without her permission the petitioner had recently contracted second marriage. Issues were framed. The petitioner's evidence was recorded. The evidence of the respondent has not yet commenced when she made application for summoning of Maulana Ghulam Ahmad Khateeb, who is said to have performed the Nikah ceremony and registered Nikahnama of the petitioner. Reply was sought from the petitioner arid the learned Family Court vide its order dated 15-9-2003 allowed the application which order is being assailed through this Constitutional petition.

4. Arguments of the learned counsel for the petitioner are two fold; firstly that a witness who has not been enlisted in the list attached with the written statement cannot be examined by Family Court; and secondly, that the Family Court constituted under a special law provides complete code in itself which do not permit summoning of a witness outside the list under section 11(2) of the Family Courts Act, 1964.

5. Conversely, the learned counsel for the respondent has opposed the aforementioned contentions. He stated that the learned Courts below has rightly exercised its discretion in summoning of Nikah Khawan as a witness.

6. The spirit of law underlying these provisions is to provide speedy justice and by all means simplify the procedure for resolution of the family dispute by reducing the time limit to its minimum. It is meant for advancing cause of justice rather than creating stumbling block to impede justice. The petitioner, allegedly contracted a second marriage. This fact has to be proved through the Nikah Khawan, who performed the Nikah ceremony. His evidence is essential and necessary for reaching to a just decision. The evidence of the respondent has not yet begun. The petitioner has a right of cross-examination. No prejudice is to be caused to him. He will not even be surprised by production of document, through witness, being fully aware of it contents.

7. There is no prohibition in the Act for production of witness not mentioned in the list. Section 7(2) of the Family Courts Act provide that a Family Court may allow production of any evidence even at a later stage if it is in the interest of justice. Section 7 subsection (2) is B reproduced below for the sake of convenience.

7. Institution of suits. (1)

(2) The plaint shall contain all material facts relating to the' dispute and shall contain a Schedule giving the number of witnesses intended to be produced in support of the plaint, the names and address of the witnesses and brief summary of the facts to which they would depose: Provided further that the parties may, with the permission of the Court, call any witness at any later stage if the Court considers such evidence expedient to the interest of justice.

The proviso to subsection (2) of the section 7 clearly provide that the parties may with permission of the Court call any witness at any later stage if the Court considered such evidence expedient in the interest of justice. Addition of word "further" in proviso to section 7(2) by Ordinance VL of 2002 on 1-10-2002 manifest the intention of legislature to grant a permission liberly, if, the Court considers such evidence expedient and essential for a just decision.

8. Section 11(2) places bar on issuance of summons for the appearance of witness, unless a party intimates the Court within three days of the framing of issue of its desire to summon a witness through Court. It is not couched in mandatory language and will not be treated as mandatory one in the absence of consequence for its non-compliance.

9. Decisions of forum constituted under the special law are normally not interfered with in exercise of Constitutional jurisdiction unless the same are illegal, void and without jurisdiction. The impugned order is in advancement to the cause for just decision. Therefore, I decline to exercise Constitutional jurisdiction.

10. Resultantly, this Constitutional petition is without substance and is dismissed. W.A.M./I-249/L Petition dismissed.