CH. MUHAMMAD IQBAL, J.----Through this writ petition, the petitioner has challenged the order dated 19.03.2019, passed by the learned trial Court/Additional District Judge, Lahore, whereby the application filed by the petitioner for recording the examination-in-chief of all witnesses first whereafter the petitioner shall cross-examine them was dismissed.
2. The petitioner submits that the petitioner/defendant wants to cross-examine the plaintif f's witnesses in single hearing i.e. firstly the respondent/plaintif f get recorded the examination-in-chief of all the PWs whereafter in a single session, the learned counsel for the petitioner will cross-examine the witnesses in order to avoid any prejudice to the case of the petitioner and if the statement of a witness is not recorded accordin g to above modality it would be amounting to extending undue favour to the plaintif f enabling him to conveniently fill up the lacunas but the learned trial judge illegally and unlawfully dismis sed the application of the petitioner through the impugned order dated 19.03.2019 which is not sustainable in the eyes of law .
3. Heard.
4. The respondent/plaintif f filed a suit for recovery of Rs.10 Billion (100 Crores) under Defamation Ordinance, 2002 against the petitioner/defendant, which suit was contested by the petitioner/defendant through filing the written statement. From the divergent pleadings of the parties issues were framed. The plaintif f has furnished the list of reliance of the documents as well as the list of the witnesses as per the requirement of Orders XIV and XVI of the Civil Procedure Code. Examination in chief of PW1 was recorded on 26.02.2019 but on the request of learned counsel for the petitioner/defendant, the case was adjourned for cross-examination. On 09.03.2019, again P.W.1 and other witnesses of the respondent/p laintif f were present but the learned counsel for the petitioner/defendant instead of cross-examining the said witnesses, filed an application with the prayer that firstly the statements of all the PWs may be recorded and thereafter , he will cross-examine the witnesses.
5. Admittedly it is bounden duty of the Court to regulate the trial proceedings of the case in order to decide the matter within reasonable span of time and also to maintain fair, equitable and unprejudiced manner in the conduct and conclusion of the trial and also to endeavour extend reasonable equal chance to all litigating parties. It is ordain of law that the plaintif f/asserter shall prove his case through adducing his evidence/witness. In this regard it is appropriate to take resort to the plain provisions of law on the subject. Articles 130, 132 and 133 of Qanun-e- Shahadat Order , 1984 which regulate the order of examination of the witnesses, which provision are reproduced as under:-
130. Order of production and examination of witnesses. The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively , and, in the absence of any such law , by the discretion of the Court.
132. Examination-in-chief, etc. (1) The examination of a witness by the party who calls him shall be called his examination-in-chief.
(2) The examination of a witness by the adverse party shall be called his cross-examination.
(3) The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.
133. Order of examinations . (1) Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.
(2) The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
(3) The re-examination shall be directed Jo the explanation of matters referred to in cross-examination; and if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine that matter .
From perusal of the above said provisions of law which do not furnish the sequel of recording of the statement of the witnesses. In absence of the clear provision the normal practice and procedure is adhered to meet the equitable ends of justice. In this regard Lahore High Court, Lahore, Rules and Order Volume I Part H regulates the procedure for producing the witnesses/examination-in-chief and cross examination . Clauses 3 and 4 of Part H of the Rules whereof, which are as under-
3. Examination-in-Chief .---In the examination of witnesses questions ought not to be put in a leading form, nor in such a form as to induce a witness, other than an expert, to state a conclusion of his reasoning, an impression of fact, or a matter of belief. The question should be directed to elicit from him facts which he actually saw, heard or perceived within the meaning of [Article 17 of the Qanun-e-Shahadat Order , 1984 (10 of 1984)1 The questions should be simple, should be put one by one and should be framed so as to elicit from the witness, as nearly as may be chronological order , all the material facts to which he can speak of his own personal knowledge. A general request to a witness to tell what he knows, or to state the facts of the case should, as a rule, not be allowed because it gives an opening for a prepared story . Where the party calling witnesses is not aided by Counsel, and is unable him to properly examine his witnesses he may be asked to suggest questions and the examination may be conducted by the Court.
4. Cross-Examination .----When the examination-in-chief is concluded the opposite side should be allowed to cross-examine the witness, or, if unable to do so, to suggest questions to be put by the Court. In cross-examination leading questions are permissible.
From perusal of the above provision of law the sequel or modality of recording of statements of witnesses will almost be as under:-
1. The statement on examination-in-chief of a witness recorded and other party cross-examine the witness.
2. Statement of a witness in chief be furnished on af fidavit that other party to cross-examine.
3. Statement-in-chief all the PWs recorded whereafter the adverse party may cross-examine such witness.
A statement of a witness consist of almost three constituent:- i) examination in chief. ii) Cross-examination and iii) Re-examination As the provisions of Qanun-e-Shahadat Order; 1984 as well as High Court Rules and Orders are silent with regard to the sequel/order of recording the statement of a witness that it is left open for a party to examine the witness according to its own device or modality and court are expected to show slow interf erence therein. As the complete statement of a witness entail examination in chief, cross-examination and re-examination and if a witness enter in the witness box, it is legally desirable that his statement in complete be recorded in one session and fragmentary recording of the statement should be avoided subject to certain legal and well-reasoned exceptions. In this regard clause 3 of the High Court Rules and Orders prescribes the procedure for cross-e xamination of the witnesses and Clause 4 categorically prescribes that when the examination in chief is concluded, the opposite side should be allowed to cross-examine the witnesses. Neither any provision in Qanun-e-Shahadat Order , 1984 nor in Rules and Orders of the Lahore High Court, Lahore is available describing the sequel of the recording of the examination in chief or cross-examination or re-examination of a witness. The legislature deliberately and consciously left a space open for a party to arrange the sequel of its witnesses according to its own or its counsel's choice and court normally avoid interference in said choice rather it has to, only regulate the produc tion of the witness according to the list of witnesses of the respective party , whereas the adverse party of the civil lis is debarred to monitor the schedule of recording of the evidence. Thus argument of the learned counsel for the petitioner that if the examination-in-chief of all the witnesses of the plaintif f is not recorded in one session first, it would prejudice the case of the petitioner as the left out deficiencies by the outgoing witness would be filled up by the next witness. It is appropriate to say in this regard that in civil suit both the litigating parties advance their respective stances through plaint or written statement and disclose their documents as well as witnesses to the opposing parties and all the pleadings and proceedings are well scheduled or structured and there is left nil space of any sudden surprise regarding the deposition of a witness and if any deposition is made beyond the pleadings which is ignorable by the court. Beside above the adverse party in order to trace out the forensic truth has a fundamental right to cross- examine such witness, and mere unsubstantial assertion or apprehension of any element of prejudice is not a reasonable cause to compel the opposite party to lead evidence according to whims and caprice of the other party .
If the court is convinced with regard to the element of prejudice to the case of a party it may prohibit the witness to disclose his deposition to other witness or oust witness in que from the court room and made them seated at separate place. It is exclusively in the discretionary jurisdiction of trial judge to regulate the procedure of recording of the evidence in a fair, equitable manner to promote the ends of justice, as such the view advanced or the apprehension demonstrated by the learned counsel is misconceived. Reliance is placed on G. V. Raman and others v. Emperor (AIR 1929 Cal. 593) wherein it has been held that there is no express provision for postponing the cross examination of witnesses till the examination in chief of all prosecution witnesses is completed. Further reliance can be placed on the case reported as Lalmani v. Bejai Ram Chaudhari and others (AIR 1934 Allahabad 840), relevant portion whereof is reproduced as under:- "The present of Lachhi during the examination of the previous witness may well be termed an abuse of the process of the Court and therefore, under S.151 the Court has inherent power to prevent that abuse. The order that Lachhi should not be heard as a witness for the defence is before an order which the Court is authorized to make under the provisions of 151 Civil P .C."
In another judgment reported as Subh Karan Singh and others v. Kedar Nath Tewari and others (AIR 1941 Allahabad 314) it was held as under:- "Bennet J. in 1934 ALJ 750 referred to above held that the universal practice in the Courts in India is that witness should be called in one by one and that no witness who is to give evidence should be present when the deposition of a previous witness is being taken, and a breach of this rule may well be termed as an abuse of the process of the Court and therefore, under S. 151 Civil P. C. the Court had inherent powers to prevent that abuse and to pass an order directing that such a witness should not be examined......."
In the case reported as Achutana Pitchaiah Sarma v. Gorantla Chinna Veerayya and others (1961 AIR (A.P)
420) Chandrasekhara Sastry , J of Andhra Pardesh High Court observed that:- "I am also of the opinion that even in the absence of any specific provision in any enactment, the Court has power to order that no witness who has to give evidence should be present when the depositions of other witnesses are being taken until he himself is examined as a witness in full. In Halsbury's Laws of England, Vol. 15, Simonds Edn.
At page 439, the rule of Practice is stated to be that at any time during the course of a trial, on an application of any party , the Judge may order witnesses in the case to leave the Court until called for ."
Reliance is also placed on Surendra Kumar v. State of Rajasthan [2000 (3) WLC 654, 2002 (1) WLN 395], Muhammad Yasin alias Mitho and another v. State (2010 PCr.LJ 1253), The case of Management of V. Akhil Bharatiya [Calcutta High Court, W.P. No.17418 (W) of 2009] and Manikandan @, Pillappa v. State [Madras High Court, Criminal Appeal No.446 of 2013].
As the names of the witnesses were cited in the list of witnesses furnished under Order XVI, Rule 1, C.P.C. and petitioner was well cognizant of the nature of evidence to be deposed by the said witnesses and reasonable time was also available with the adverse party to conceive and schedule the formation of its cross-examining on the witnesses, which excludes element of any kind of sudden surprise to the adverse party or any kind of prejudice. It is unambiguous jurisdiction of the Court to regulate its proceedings according to fair equitable exercise of discretion as per law, procedure of practice or legal customs and party has also to lead its evidence under the superadded command of court regarding prove of the facts as well as the sequel of the examining the witnesses. Hence in the civil lis matter is normally decided on the preponderance of the evidence and with logical probabilities which parameter are somewhat different to that of the recording of the evidence in criminal prosecution case which requires proving of the case till utmost certainty as such the case law cited by the learned counsel relates to examination in chief of witness appeared in jurisdiction of criminal prosecution court which furnish a little support to the instant case.
6. In view of above, this writ petition, being devoid of any merit, is hereby dismissed. However , the learned trial Court is directed to decide the case, expeditiously .