ALI BAQAR NAJAFI, J. --- This writ petition is directed against the order dated 20.06.2011 passed by the learned Civil Judge, Pind Dadan Khan, and upheld by the learned Addl. District Judge, Pind Dadan Khan, vide judgment dated 30.03.2012.
2. The brief facts giving rise to filing of this writ petition are that the respondents filed a suit for pre- emption which was resisted by the petitioners by filing a written statement, whereafter the issues were framed and the case was fixed for evidence wherein PW-1 (a postman) was produced.
3. On 30.05.2011 the respondents moved an application to confront the signatures of one witness namely, Muhammad Yaqoob, through Muhammad Ayub son of Qadir Bakhsh and Muhammad Munir son of Aurangzeb as he was mentally retarded/disable person and, therefore, application for secondary evidence was moved. The said application was resisted by the respondents on the ground that at the time of issuance of notice he was mentally fit and has not been declared mentally disable by any competent Court. On 20.06.2011 the learned Civil Judge declared the said Muhammad Yaqoob to be mentally disordered person against which an appeal was filed but the same was dismissed on 30.03.2012. Hence this civil revision.
4. The learned counsel for the petitioner submits that the impugned order is sketchy and was passed in arbitrary manner; that the impugned order is a result of miscarriage and non-reading of evidence. Under Article 79 of the Qanun-e-Shahadat Order, 1984 the secondary evidence can only be produced if the witness has become incompetent of giving evidence; the Court should record the evidence first in order to ascertain the mental health condition of the alleged witness.
5. Conversely, the learned counsel for the respondents submits that vide departmental receipt dated 26.03.2011 Muhammad Yaqoob, the said witness was assessed as depressive and disoriented who had sent the notice in presence of another marginal witness.
6. I have heard the learned counsel for the parties and perused the record.
7. The application dated 30.03.2011 for secondary evidence was decided by the Civil Judge on the basis of report issued by Benazir Bhutto Hospital, Rawalpindi, holding that Muhammad Yaqoob has lost his mental capacity, therefore, is incapable of giving evidence in terms of Article 76 of the Qanun-e-Shahadat Order, 1984. The learned Appellate Court has also followed C.L.R. the same view, but, additionally, held that Mental Health Ordinance, 2001 was not required to be applied in order to ascertain whether the secondary evidence of such witness was called for. It is in-fact the subjective analysis of the Court in the given facts and circumstances which forms the basis of such order. The said report is un-controverted. The other witnesses were also mentioned in paragraph No. 4 of the plaint in whose presence Muhammad Yaqoob sent the notice. Therefore, two Courts below have not committed any material irregularity resulting into injustice and as such this civil revision has no force and is dismissed.