' SHAHID ANWAR BAJWA, J.-In this petition, petitioner is husband and respondent No,2 is his wife.
Parties were married at Karachi according to Muslim Personal Law of Shia Sect on 10-10-1998, dower was fixed at Rs,51,000. Marriage between petitioner and respondent No,2 still subsists. In 2006 petitioner filed Family Suit bearing No, 1240/2006 in the court of 3rd Civil and Family Judge, Karachi East with following prayers:
(a) Ordering the defendant to pay the plaintiff prompt dower amount i.e, Rs,51,000 (Rupees Fifty one thousand only).
(b) Ordering him to pay Rs,10,000 (Rupees Ten thousand only) per month as maintenance with effect from 5-5-2003.
(c) Ordering him to return the plaintiff's all articles of dowery as per list annexure "B" and marital Gift as per list annexure "B/l" in a sound condition or in the alternative to pay value thereof to the tune of Rs, 1,71,360 (Rupees one lac seventy one thousand three hundred sixty only) and also Rs,1,50,000 towards the alternative of marital gifts.
(d) To pay profits over the investment of Rs,50,000 (Rupees fifty thousand only) paid by the plaintiff to the defendant and invested by him in establishing the shop etc., or in the alternative to order him to repay Rs,50,000 (Rupees fifty thousand only) to the plaintiff with the profits accrued thereon.
(e) To grant any other relief which this Hon'ble Court deems fit and proper in the circumstances of this case .
(f) Awarding cost of the suit to the plaintiff against the defendant.
2. Written statement was filed by defendant and in written statement (whereas plaint ran to 4 pages, written ran to l2 pages). Petitioner apart from rebutting various averments made by the respondent No,2 in her plaint made prayer that the respondent No, 2 be directed to rejoin petitioner along with all the valuable articles etc. Issues were framed and thereafter evidence commenced.
Respondent No,2 appeared as her own witness and on 9-8-2008 it was recorded in diary sheet that plaintiff was present along with her counsel. Defence counsel (counsel for petitioner) after cross- examining plaintiff at some length stated that he would file transfer application and submitted statement in this regard. Matter was adjourned to 30-8-2008. On statement filed by present petitioner order "file" was passed. On 8-11-2009 while cross- examination was in progress trial court closed side of plaintiff in mid stream of cross-examination. Petitioner filed transfer application. Transfer application was allowed and suit was transferred to VHIth Family Judge and Judicial Magistrate, Karachi East.
3. In transferee court present petitioner filed application for summary dismissal of the suit. The main ground in application was stated in the following words: "MOST HUMBLY SHEWETH, on behalf of the defendant above named, that the plaintiff has refused to submit herself for cross examination by the counsel for the defendant as to the averments made by her in her cross examination rather opted to close her side in the mid stream. As such, in the eye of law, there is no evidence on record on behalf of the plaintiff in support of her case.
' Rebuttal follows the establishment and well settled law."
4. Objections were filed by the present respondent No,2. This application filed by present petitioner was dismissed vide order dated 11-4-2009. Being aggrieved by this order this Constitution Petition has been filed by the petitioner (husband).
5. Learned counsel while adumbrating that he has lot of love and respect for his wife, primarily submitted that since the respondent No,2 is not submitting to cross- examination, her evidence must be discarded and since it is case of no evidence the suit must be dismissed. He relied upon 2006 CLC 1393 (Mst. Nasim Sharif v. Imtiaz Ali Khan and 3 others), PLD 2005 SC 63 (Pir Mazharul Haq and others v. The State), 2008 SCM R 236 (Mr. Anis Haider and others v. S. Amir Haider and others), PLD 1963 Karachi (W.P.) Karachi 63 (Hakeem v. The State), PLD 1962 Baghadad-ul.Jadid l2 (Ranjah v.
The Stated 1991 PCr.LJ 1707 (Nizamuddin and others v. The State) and 1972 PCr.LJ 649 (Muhammad Abbas v. The State).
18- Learned counsel for respondent No,2 has stated that it would be axiomatic to argue that parties who have been in bitter litigation against each other for almost three years would be having relationship of abiding love and affection to each other. Learned counsel referred to Page 3 of the cross-examination to contend that advocate for present petitioner had been asking irrelevant questions and in spite of very minor issue involved in the case cross- examination spread to almost 6 pages. Hence the court closed side of the plaintiff. Learned counsel submitted that in Civil Miscellaneous Application No,22/2009 on 6-2009 order was passed by this court that trial be concluded within three months keeping in view of mandatory provision of section 12-A of the West Pakistan Family Courts Act, 1964. Learned counsel submitted that his client is still prepared to stand in the witness box and learned counsel may Cross-examine her and such cross-examination must be confined to issues involved and must not be converted to a rambling, fishing expedition.
' According to learned counsel the fact that his client was still prepared to appear for cross- examination, shows her anxiety for quick disposal. He relied upon PLD 1967 SC 167 (Muhammad Shafi v. The State) and PLD 1957 Dacca 322 (Jalauddin Ahmed v. The Crown).
6. Exercising right of reply learned counsel for petitioner submitted that since it was a case of no evidence, suit should have been dismissed by trial court. He states that offer by the learned counsel for respondent No,2 is not acceptable to him. With respect to the order passed by this court on 18-6-2009 learned counsel stated that same is an ex parte order without notice to him.
7. I have considered submissions made by the learned counsel. I have gone through the case law cited by the leamed counsel and have also gone through the record.
8. In Nasim Sharif's case petitioner's examination-in-chief was recorded and during course of her cross-examination she was confronted with a video recording of marriage of deceased spouses at. Which point of time she walked out from court and boycotted the proceedings. Cross- examination could not be completed. In this back ground of facts court observed that since petitioner herself refused to be subjected to cross-examination and did not deliberately produce any evidence, therefore, she must face consequences. In Pir Mazharul Haq's case the investigating officer stated that one Abdul Karim Pathan was consulted in respect of market price. However, statement of said Abdul Karim was not recorded. It was in this context that the Hon'ble Supreme Court referred to Monir's on evidence for the observation that; "where no opportunity to cross- examine the deponent has been given his testimony would be inadmissible". In Anis Haider's case it was held that pleadings could not be taken as evidence particularly when maker was not even examined in its support and cross- examined by his opponent. Other judgments cited by learned counsel for petitioner are on the same point.
9. On the other hand in Mohammad Shafi's case on which learned counsel for respondent. No,2 relied upon it has been held as under: "The purpose of cross-examination is to assist the court in bringing the truth to light by disclosing or clarifying matters which witnesses may wish to conceal or confuse from motives of partisanship.
The partisan nature of all these witnesses with the exception of Karim Bakhsh was plain and in view of the nature of the defence set up the points on which concealment was to be excepted were also well-defined. Effective cross-examination could be confined within a narrow compass. Here, the questioning went beyond all reasonable limits.
' There is a regrettable practice among class of lawyers to use prolonged cross-examination for the purpose of leading a witness into error after his alertness has been reduced through fatigue and his resistance to suggestions made in the form of leading questions has thereby been reduced. Such a practice is plainly designed not for the disclosure of truth, but for the manipulation of error, and we take this opportunity of expressing our entire disapproval of the use of such methods. Mr. Barkat Ali Saleemi himself agreed that when he studied the case for the purpose of the present appeal, he felt that he had gone too far in taking up the time of the court and by subjecting each of the witnesses to a prolonged ordeal. He undertook to avoid such a practice in the future."
10. In Jalaluddin Ahmed's case law was laid down in the following words: "-no doubt cross-examination is one of the most important processes for the elucidation of the facts of a case, and all reasonable ' latitude should be allowed, but the Judge has always a discretion as to how far it may go or how long it may continue. A fair and reasonable exercise of his discretion by the Judge will not generally be questioned by an appellate court. In our opinion, the Judge who has seen the demeanour of the witnesses, and the manner in which they were answering questions must be held to have fairly and reasonably exercised his discretion which we are not prepared to question. "
11. In the present case examination-in- chief was held on 19-4-2008 and cross was reserved. Cross started on 9-8-2009, when learned counsel for present petitioner asked question "whether you gave any notice to defendant from 5-5-2003 till filing of this case". Presiding Judge wrote that this question is irrelevant to issues and disallowed the question. Presiding Judge further directed learned counsel for present petitioner to ask questions relevant to the issues framed. At that stage learned counsel for petitioner asked a question that "you have not prayed for return of gold ornaments in your plaint". Presiding Judge held that this question is irrelevant and frivolous and disallowed and warned the counsel for the present petitioner to ask relevant questions in cross- examination. At that stage learned counsel for the present petitioner stated that he would make transfer application. That transfer application was allowed and the matter was transferred to VIHth Civil and Family Judge, Karachi East.
11- After transfer, matter was listed on 11-10-2008 and by consent of parties it was adjourned to 25- 10-2008. On 25-10-2008 again with consent it was adjourned to 8-11-2008. On that date case diary was recorded as under: "8-11-2008 ' Case called. Both parties as well advocate are present, Plaintiff's counsel filed statement to close the plaintiff side as Ex.P/2. D.C. Filed statement, order passed on it. Case is adjourned to 29-11-2008 for defendant evidence/further proceedings."
29- Chronology further indicates that in transferee Court there has not been any further cross- examination. On both the earlier dates matter was adjourned by consent. Diary sheet of 8-11-2008 does not show that present petitioner's counsel stated that he wants to continue his cross- examination. It was in such situation that counsel for present respondent No,2 stated that he wants to close his side. Petitioner in his application for summary dismissal has stated that respondent No, 1 refused to submit herself to further cross-examination. I am afraid this statement is not supported by the court below. There is no refusal recorded in the diary sheet. In fact, after transfer of matter case had been adjourned twice. Secondly, when on 8-11-2008 learned court below adjourned case to 29-11-2008 it adjourned for defendant's evidence or further proceedings. Defendant counsel was present in court on that date. When defendant's counsel was present in court and matter was adjourned to next, date for defendant's evidence it was duty of defendant's counsel to stand up and say that he would like to complete the cross- examination because cross-examination has not yet been completed. But that did not happen. Therefore, petitioner's contention that respondent No,2 had refused to submit herself to cross-examine is not well founded, to say the least about it. In my opinion, even in this court respondent No,l repeatedly made offer to undergo for the cross-examination but the petitioner appears to have adopted a hardened stance. Learned court below has rightly rejected application filed by the present petitioner.
12. This is a family matter and learned court below has rightly recorded that family matters should be decided as quickly as possible. Insofar as mandate of law under section 12-A of the Family Courts Act, 1964 is concerned that matter should be decided within six months. I, therefore, while dismissing this petition direct the trial court to allow a period of one month to petitioner for cross- examination of present respondent No,2 an after completing the evidence of both sides decide the matter positively within a period of three months hereof.
' C.P. No, S-426/2009 is dismissed in n the above terms along with listed applications.