MUHAMMAD AMEER BHATTI, J. --- This Constitutional petition is directed against the interlocutory order dated 19.05.2011 passed by the learned Trial Court, refusing to bring on record the statements of Zaheer Ishaque, Patwari and Muhammad Ashraf (respondents No. 3 and 5/defendants No. 3 and 5) recorded by the Anti-Corruption Department in the course of inquiry proceedings initiated on the application of the petitioner/plaintiff about the impugned mutations. Although the inquiry has been dropped by exonerating the defendants/respondents of the charges levelled by the plaintiff/petitioner. The impugned order is the outcome of the suit for declaration filed by the present petitioner against the respondents/defendants wherein the plaintiff has challenged the validity of the mutations sanctioned by the respondents/defendants No. 2 and 3 in favour of defendants/respondents No. 4 and 5 in transgression of their official authority. The defendants filed their written statements and after framing the issues, the plaintiff/petitioner produced the evidence in support of his stand to ACE, Faisalabad region (summon through Court), who appeared as P.W.3 alongwith record and made the statement about the holding of inquiry and recording of the statements of Muhammad Ashraf s/o Ghulam' Muhammad and Zaheer Ishaque, Patwari and during his examination-inchief, produced the statements of the said defendants. However, on the objection of the learned counsel for respondent No. 4 to the effect that without summoning the concerned persons, the evidence of those persons recorded in another proceeding cannot be produced in this case. On this objection recording of the statement of the P.W. 3 was stopped and Court proceeded to uphold the objection after providing the opportunity of hearing to the parties through the impugned interlocutory order dated 19.05.2011, which is as under:--- "Learned counsel for the plaintiff opposed this objection.
Arguments were heard.- According to Article 140 of Qanun-e-Shahadat Order "Cross-examination as to previous statements in writing---A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matters in question without such writing being shown to him, or being proved; but it is intended to contradict him by the writing his attention must before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
2. This order was challenged before the revisional Court, vide order dated 18.06.2011 dismissed the same on the ground that no illegality, irregularity and infirmity in the impugned order was found.
Hence this writ petition was filed as no alternate, efficacious and speedy remedy was available to get the impugned orders quashed as the order was nullity in the eye of law.
3. Learned counsel for the petitioner contends that the case of the petitioner is that unless he brings on record these documents (the statements of the defendants/respondents which were recorded in the inquiry proceedings by the Anti-Corruption Department) the same, if will not available at the time of recording of the evidence of the defendants/respondents, the petitioner could not be in a position to confront the defendants with their these statements required under Article 140 of Qanun-e-Shahadat, 1984. Since these documents are the part of the inquiry held by the Anti-Corruption Department and the Senior Clerk of the Anti-Corruption Department has appeared alongwith the record as P.W.3 and by recording his evidence, these statements/documents were also produced by that witness, the same cannot be denied by the learned Trial Court, hence the learned Court has committed illegality and irregularity which is not curable but the learned Revisional Court without adverting to legal position endorsed the order of the learned Trial Court by pronouncing that he has not committed any illegality or irregularity.
Further contends that the orders of both the Courts below are not based on any legal infirmity. Even the order of the Revisional Court on the face of it seems to be against the record of the case.
4. On the other hand learned counsel for the respondents intensely opposed the petition on the preliminary objection that the writ petition is not maintainable as the remedy provided under the law has already been exhausted by the petitioner. Since it is an extraordinary jurisdiction which is not meant for this purpose as the statute itself has not provided further remedy. It is settled law that the remedy which is not provided directly in law cannot be availed indirectly. Learned counsel for the respondents further contends that there is no infraction of any mandatory provisions of law unless it has been proved that any mandatory provisions of law has been violated the writ cannot be issued while exercising the extraordinary jurisdiction.
He has relied on Muhammad lshaq Shah v. Sardar Muhammad Jahangir Khan, Additional District Judge, Multan and others (1989 MLD 987), Muhammad Sarwar and others v. Khushi Muhammad and another (2008 SCMR 350), Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 Supreme Court 25), Abdur Rahim Khan v. Muhammad Tahir Khan, etc. (PLJ 2010 Peshawar 129), Syed Qamar Ahmad and another v. Anjum Zafar and others (1994 SCMR 65), Asif A.I Zardari and another v. The State (PLD 2001 Supreme Court 568) and The State v. Mohtarama Benazir Bhutto and another (PLD 1999 Lahore 535), while referring to Section 99 of the CPC, contends that if defect is found in the procedure of the Trial Court which otherwise is correct on merits, the decision shall not be upset on the ground of technicalities or immaterial effects.
5. I have heard the learned counsel for the parties and perused the record.
6. There is no doubt in my mind that for exercising the jurisdiction under Article 199 of Constitution of Islamic Republic of Pakistan, if the interlocutory order arises out of civil litigation after availing the right of revision petition, shall not be exercised unless the Courts have trailed from their jurisdiction or they have failed to do which otherwise was required under the law.
7. So, I have to examine the order passed by the learned Trial Court on this touchstone. For that matter, it as necessary to first examine this fact whether the documents/statements which were intended to be placed on record through custodian of the record are public documents or not? It will be appropriate to reproduce the relevant provisions of Qanoon-e-Shahadat Article 85: "85. PUBLIC DOCUMENTS Public documents. The following documents are public documents:--- 1 documents forming- the acts or records of the acts---
(i) (ii) (iii) Of public officers, legislative, judicial and executive, of any part of Pakistan, or of a foreign country"
From bare reading of this provision of law, it becomes obvious that documents which have been prepared by a public servant in the discharge of his official duties are public documents. Since public documents are acts of public functionaries in the executive, legislative and judicial Departments of government, hence need not to be proved. Keeping in view the above provision of law, the documents/statements which had been required to be placed on record by the P.W.3 in his statement were the public documents as those documents/statements were purportedly executed by the officer of the ACE Department at the time of holding of an inquiry in the discharge of his official duties.
8. There was no cavil to bring on record through the PW.3, appearing to get his statement recorded alongwith the official record and the same record was produced at the time of recording of the evidence before the Court and those statements were part of that record which he was producing.
9. Even otherwise without bringing on record these statements, the petitioner would not be in a position to confront that documents/statements to the defendants at the time of the recording of their statement in this suit, makes ample legal sense and this aspect has escaped the consideration of the learned Trial Court which renders the order erroneous and learned Revisional Court has also failed to perform its duty.
10. It is now settled law that any authority invested with judicial power, while exercising such power, shall decide the matter according to the established judicial norms. The earlier concept that an Authority/Tribunal having jurisdiction to decide the case rightly or wrongly is no more a valid law.
Reliance is placed on the Hon'ble Supreme Court in Utility Stores Corporation of Pakistan Limited v.- Punjab Labour Appellate Tribunal and others (1987 S.C. 447):--- C.L.R.
"(f) Constitution of Pakistan (1973)--- ---Arts. 199 & 4---Power of review by High Court in its writ jurisdiction---Excess of jurisdiction--- Tribunal, invested with jurisdiction to decide a particular matter, has no jurisdiction to decide it "rightly or wrongly"---Condition of grant of jurisdiction is that it should, decide the matter in accordance with law---Tribunal when goes wrong in law, it goes outside jurisdiction conferred on it because Tribunal has jurisdiction to decide "rightly" but not the jurisdiction to decide "wrongly"--- When, Tribunal makes an error of law in deciding matter before it, it goes outside its jurisdiction and decision of Tribunal which is erroneous on a point of law can be quashed under writ jurisdiction as being in excess of law---It is right of every individual under Art. 4 to be dealt with in accordance with law and were law has not been correctly or properly observed it is proper case for interference by High Court in exercise of its Constitutional jurisdiction."
Messrs Karachi Tank Terminals (Pvt.) Ltd. v. Collector of Customs (Preventive) and 2 others (1993 MLD 1566).
11. Evidently, the learned Courts below have ignored the legally fundamental aspect of the matter and acted contrary to the provision of law. Even otherwise, Courts should have avoided technicalities to deliver the substantial justice.
12. It is well-settled law that instead of awaiting for the completion of the whole trial, any illegality in the interlocutory order which hamper the case of any party should be wiped out from the record so as to nip the illegality in the bud instead of reversing the protracted proceedings at the belated stage of appeal in the form of remand. To obviate such remand, any shortcoming should be removed from the record as early as possible.
13. Given the afore-mentioned situation, this Court feels obligated to legal indispensability of removing the defect in the proceedings of the Trial Court at it initial stage to avoid prospective complication. Findings of Courts below suffered from serious errors of law, which unless set aside would result in miscarriage of justice, thus constraining this Court to exercise the power under Article 199 of the Constitution of Islamic Republic of Pakistan to remove the illegality in the proceedings of the Trial Court. Reliance is placed on Ashiq Hussain v. Sikandar Shah and 14 others (2011 CLC 373 (D.B):--- "---Art. 199---Constitutional jurisdiction of High Court-- -Scope---Impugned interlocutory order, if against law and suffering from infirmities, could be checked and interfered with by High Court."
Kausar Bibi v. Allah Ditta Chaudhry (PLJ 2010 Lahore 299): "There are no hard and fast rules---In ordinary/normal course of things/interim orders are not amenable to Constitutional jurisdiction, however, High Court in appropriate/exceptional cases, can interfere to set things right, where interference is deemed necessary to restrain injustice being done to a party."
14. The up-shot of the above discussion is that Constitutional petition is allowed the impugned orders dated 19.05.2011 and 18.06.2011 passed by the Courts below are hereby set aside.
Consequently, the objection raised by the respondents is over-ruled. .