' ZUBDA-TUL-HUSSAIN, J.---In a suit for pre-emption the petitioner, Mst. Kaniz Fatima, has been pursuing her cause through the special attorney. The suit is now pending at the stage of final arguments before the learned trial Court. The plaintiff, Kaniz Fatima, through her special attorney submitted an application (when the suit had already reached the stage of final arguments) for appointment of a local Commission on the ground that she had appointed the special attorney on her behalf for prosecuting her cause who recorded his statement in the suit and being a plaintiff in the pre-emption suit her own statement was necessary but she being a `Pardah' observing lady and a member of the landlord family could not appear in person before the Court for recording her statement and-for that reason her statement is required to be recorded through appointment of a local Commission.
2. This application was contested, on the ground that it had been submitted too belatedly, the statement of the special attorney of the plaintiff had been recorded and the permission sought for if granted would jeopardize the ends of justice.
3. The application of the said plaintiff, Mst. Kaniz Fatima, having been dismissed on 21-1-2008 by the learned trial Court the order was challenged by way of civil revision before the learned Additional District Judge, Bhakkar which was also dismissed through an order dated 19-6-2008. The vires and legality of both these orders have been challenged by the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
4. The learned counsel for the petitioner has maintained that the order refusing the appointment of a local commission is illegal and void ab initio, against the law and facts and is based on illegal assumptions and presumptions. The learned counsel further contended that the petitioner is a `Pardahnashin lady' and the Court has no power to insist that she must attend and give evidence in the Court. According to the learned counsel it is the right of a `Pardahnashin lady' to refuse to attend the Court and to say that she is to be examined and her statement 'should be taken on commission as she cannot be compelled to attend the Court either as a party or as a witness. The learned counsel has in support of his contentions relied upon the judgments in the cases of Kissinlal Kankaria v. Purshottamdas Lialwasiay and another (AIR (29) 1942 Calcutta 143, Rahimannessa Bibi v. Sk. Halim (AIR 1928 Calcutta 814), Nathumal Chandumal v. Haribai (AIR 1935 Sind 205) and Smt. Sundar Devi v. Dattatraya Narhar Rege and another (AIR 1933 Allahabad 551).
5. It has been stated that during the trial on behalf of the petitioner sufficient evidence was led to the effect that she was a 'Pardahnashin lady' and by that factor as well as by virtue of the prevailing custom in the family of the plaintiff and the concerned area she could not expose herself in the public by appearing as a witness or a party in the case. On the strength of the cited judgments the learned counsel, therefore, asserted that the petitioner needed to be examined on Commission because the learned trial Court had otherwise permitted her to record her statement before the Court.
6. The material referred to by the learned counsel for the petitioner with reference to the proceedings of the learned trial Court is in the form of the statement of the special attorney of the petitioner as well as Zakiullah Khan, P.W.2 and Rafiullah Khan, P.W.3 but the pertinent fact to be noticed in this behalf is that this evidence was about the details regarding the measures for the institution of the suit and at that time the question as to whether the petitioner was or was not a 'Pardahnashin lady' was not at issue. Hence, merely on the basis of that evidence no privilege can be claimed against the rights of the defendants/respondents. The evidence on the point of 'Pardahnashini' of the petitioner and the evidence lead on the same could be used against the defendant/respondent only if they had a notice of the same or an issue was existing on that point because if no issue was being tried on `Pardahnashini' of the petitioner nor the question of her 'Pardahnashini' for the purpose of the `Talab-i-Muwathibae was before the Court, the defendant/respondent could not be supposed to (nor an opportunity was available to them) to meet the contentions. Hence, the contention that the petitioner has already placed on record the material to prove her `Pardahnashini' is not tenable nor such evidence can be made the basis of deciding the status of the petitioner as a 'Pardahnashin lady'.
7. The law as expounded in the afore-cited judgments cannot be disputed. Section 132 of the C.P.C., of course, provides that the women who according to the custom and manners of the country are not to be compelled to appear in public shall be exempt from personal appearance in the Court.
Order V Rule 3, C.P.C. Can also be pressed in aid of the claim for non-appearance in the Court, on the ground of being `Pardahnashin lady'. Order XXVI rule 1 read with these provisions of law, namely, section 132 and Order V rule 3, C.P.C. May provide the scope for examining a 'Pardahnashin lady' on commission. But at the same time it has to be borne in mind that the status and claim of being a `Pardahnashin lady' by itself is a question of fact which has to be determined on the basis of necessary evidence and the material produced on record.
8. The concept of being and claiming the privilege of a `Pardahnashin' lady has an old history and long standing practice which of course has its inception in the local custom, law or values including the religious dimensions. At the same time it is a hard fact and bare reality that the advent of time, advancement of social, cultural and economic life especially with the increasing and advancing educational culture, the faith, the thinking, disposition and the psychology of even the customary people and customary families (even the tribes) has undergone a substantial and radical change. Those ladies who could never imagine of free and higher education at times happen to be the leading figures of social and political activity. The social as well as the legal concept of "Pardahnashini" has essentially undergone a proportionate progressive change.
9. Thus, the privilege of being a 'Pardahnashin' lady now cannot be claimed as a matter of presumption and in order to have the legal benefit of section 132, C.P.C. It has to be established as a fact with direct and rather much more strong evidence of fact. In the wake of changing social, political, economic, educational norms the Courts have to look into this issue, receive evidence and decide the same more carefully, if not jealously, before taking measures for legal proceedings in relation to and recording evidence of a lady as a 'Pardahnashin'. In the given circumstances even on this touchstone the impugned order is unexceptionable.
10. Although the learned trial Court observed that the petitioner could appear in person for making her statement yet the fact that she missed the opportunity of appearing in the Court of claiming the privilege of 'Pardahnashin lady' at the appropriate stage before the conclusion of the evidence, cannot be denied. The observation of the learned Additional District Judge that the petitioner is trying to fill up the lacuna of her evidence is, therefore, not totally without substance. All the same as rightly observed by the learned trial Court the special power of attorney was written by the petition writer and was then attested by the Notary Public, prima facie leads to the conclusion that these measures were accomplished in the District Courts or at some area other than the residence of the petitioner.
11. Even if the evidence referred to by the learned counsel for the petitioner regarding the 'Pardahnashini' of the petitioner is taken into account it relates only to the preparation of the notice and the execution of the `vakalatnama'. There is no such evidence as would show that the power of attorney was also executed and attested at the residence of the petitioner. The learned trial Court was, therefore, justified to conclude that the execution of the special power of attorney and its attestation by the Notary Public negated the version of the petitioner. The findings of the learned trial Court or the learned revisional Court are neither perverse nor suffer from any illegality or material irregularity. The writ petition is, therefore, dismissed.