The petitioners are aggrieved of dismissal of their revision petition by the learned Additional District Judge, Shujabad on 22.07.2016, which was filed by the petitioners against order dated 16.01.2016 passed by the learned trial court allowing the plaintif fs of the suit to get recorded statements of Muhammad Akbar , Munir Ahmad and one of the plaintif fs Mst. Noor Jahan, who were present before the Court, but their name s were not included in the list of witnesses filed by the plaintif fs within the requirement of Order XVI C.P .C.
2. Learned counsel for the petitioners is of the view that in view of amendment by Lahore High Court in Order XVI Rule 1 sub-rule (2) C.P.C., whereby word "or produce" in between the words "call" and "witnesses" were added on 02.10.2001, the plaintif fs were not at liberty to ask the trial court to get recorded statements of the persons present in the Court irrespective of the fact that their names were not enlisted in the list of witnesses filed within seven days after framing of issues.
Contrary thereto, learned counsel for the respondents/plaintif fs has submitted that notwithstanding the amendment in Order XVI Rule 1(2) C.P.C., the persons present before the Court can still be claimed to be the witnesses for the reason that provisions contained in Order XVIII Rules 2 and 4 C.P .C. are still un-amended.
3. The effect of amendment by this Court in sub-rule (2) of Rule 1 of Order XVI C.P.C. was examined by a learned Single Judge in Chambers by this Court in case of "Haji MUHAMMAD TUFAIL versus MUHAMMAD IQBAL " reported as 2005 MLD 688 and it was held that even after Lahore High Court ?s amendment, whereby word "produce" has been inserted in Order XVI Rule 1 C.P.C. without amending the provisions of Order XVIII Rules 2 and 4, the situation would remain the same and the persons present before the Court could validly be asked to be recorded as witnesses.
To examine the referred provision of law, it would be beneficial to better understand to reproduce the provisions of Order XVI Rule 1(2) as amended up-to date and Order XVIII Rules 2 and 4 C.P .C.
Order XVI Rule 1(2) C.P .C.
"A party shall not be permitted to call or produce witnesses other than those contained in the said list, except with the permission of the Court and after showing good cause for the omission of the said witnesses from the list; and if the Court grants such permission, it shall record reasons for so doing."
Order XVIII Rule 2 C.P .C.
"(1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he bound to prove.
(2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case.
(3) The party beginning may then reply generally on the whole case. "
Order XVIII Rule 4 C.P .C.
"The evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge. "
Order XVI C.P.C. deals with the procedure provided for "summoning and attendance of witnesses ", whereas Order XVIII C.P.C. provides the manner in which "hearing of the suit and examination of witnesses" is to be conducted.
Calling or producing the witnesses is thus subject matter of Order XVI C.P.C. and after the amendment of 2001, at least in the Courts subordinate to Lahore High Court, inclusion of names of the witnesses, which either to be called or to be produced by the party concerned, in the required list is mandatory . However , exception to such mandatory provision is provided in the said rule in the manner that the Court, in case, a good cause has been shown for the omission of mentioning of names of the witnesses in the list, would grant special leave by recording reasons for so doing to allow recording of statement of such witness, whose name was omitted in the referred list.
The words used in Rule 4 of Order XVIII C.P.C. i.e. "witnesses in attendance", have been taken in case of Haji Muhammad Tufail versus Muhammad Iqbal supra as the persons present before the Court, but in my humble view, such view must be result of some lack of proper assistance provided to the Bench in the referred case.
"Witnesses in attendance" as is provided in Rule 4 of Order XVIII C.P.C. is in fact referable to the witnesses called' or produced' in the manner, as has been provided in Order XVI Rule 1(2) C.P.C. and while holding so, the delicate distinction in between "summoning" and "calling" of witnesses, which is subject matter of Order XVI C.P.C. and "examination of witnesses", which is subject matter of Order XVIII C.P.C., is to be kept in view. This is also to be taken into consideration that even in Rule 4 of Order XVIII C.P.C., the witnesses in attendance is the term used, which is definitely different from the term of persons in presence. As such, the view taken in Haji Muhammad Tufail's case is distinguished and it is held that after amendment of 2001 in Rule 1(2) of Order XVI C.P.C., there was no requirement to amend the provisions of Order XVIII Rules 2 and 4 C.P.C. and in presence of referred rules, the amendment in Order XVI Rule 1(2) C.P.C. would be having prevailing effect and at the time of examination of witness, the list of witnesses filed under Order XVI C.P.C. is to be kept in view and no person present before the Court would be competent to be produced as a witness.
Even earlier to amendment in 2001, the Hon?ble Supreme Court of Pakistan in case titled "Mst. MUSARRA T BIBI and 2 others versus TARIQ MAHMOOD TARIQ " (1999 SCMR 799) has authoritatively held that in case either the witnesses are to be called or to be produced by the party concerned, it would be mandatory upon such party to include the names of such witnesses in the list to be filed under Order XVI C.P .C.
In another case titled "MUHAMMAD ANW AR and others versus Mst. ILYAS BEGUM and others " (PLD 2013 Supreme Court 255), the Apex Court has held that the object of presenting list of witnesses was that no one should be taken by surprise in the course of trial and the parties, before commencement of trial, must be conscious, aware and fully prepared as to what kind of evidence was expected to be given by the witnesses of the opposite side, so that they could make necessary preparations for cross-examinat ion etc. and secondly to prevent the concoction and fabrication of the evidence and to make up blatant omissions made by the litigants during the course of the trial. It has been further held the object of such exercise was to bind the parties to such genuine evidence which was available to them at the time of the start of the trial, so that they should not subsequently avail stock and fudge evidence to make up their cases and the deficiencies.
4. In the impugned order alongwith two persons Muhammad Akbar and Munir Ahmad, one of the plaintif fs i.e. plaintif f No.3 Mst. Noor Jahan was also allowed to be examined as a witness es. The party to a litigation is otherwise entitled to get his/her statemen t recorded as a witnesses irrespective of the fact that the list of witnesses filed under Order XVI C.P .C. contained her name as a witness or not.
5. Before announcement of order , learned counsel for the petitioners submits that to the extent of Mst. Noor Jahan- plaintif f No.3, he will not press this petition, as such, this petition to the extent of Mst. Noor Jahan plaintif f No.3 is dismissed . However , since the names of Muhammad Akbar and Munir Ahmad, who were allowed by the learned trial court to be examined as witnesses, were not included in the list of witnesses, as such, they were not persons competent to be treated as witnesses either to be called or to be produced in such capacity and the impugned orders to the extent of such two persons Muhammad Akbar and Munir Ahmad are set aside and to that extent, this petition is allowed .