' The petitioner brought a suit for dissolution of marriage against respondent No. 2, on several grounds including the one that he is apostate from Islam. Admittedly, they were married in London.
According to the petitioner, the respondent who before marriage, belonged to Parsi denomination embraced Islam and contracted Nikah with her, in accordance with the Muslim rites but later on he renounced Islam and reverted to Parsi faith. However, the latter controverted these allegations, denied to have ever abandoned his old creed and urged that since the petitioner's parents abhorred her marriage with a Parsi, she chose to seek the dissolution of marriage.
2. In order to prove the respondent's conversion to Islam and his subsequent marriage with the petitioner, as convert, she applied to the learned Family Court for permission to produce in evidence, under section 11 (4) of the Family Courts Act 1964, the affidavits of two witnesses namely Hafiz Muhammad Qasim Siddiqui and Khadija-tul-Kubra. The former was stated to be a very old and infirm person, who permanently resided in London. His affidavit dated 10-2-1981 intended to be tendered in evidence, was shown to him in London. The other witness belongs to Lahore while in Pakistan she made an affidavit dated 14th July 1982 but in the following month, she left for London, to join her assignment there, with no plan to return to Pakistan in the near future. In these circumstances, it was pleaded, before the Family Court, that the presence of both the witnesses could not be procured without expenses, delay and inconvenience.
3. This application was strenuously opposed by the respondent primarily on the plea that he could not be deprived of the right of cross-examining the witnesses. In his submission, their presence in the witness-box was absolutely necessary. The argument that the personal appearance of the deponents, would involve expenses, inconvenience and delay, was also refuted and it was asserted that she should have thought of it while citing them as witnesses. It may be observed that during the pendency of the application, information was laid before the learned Family Court that due to paralysis Hafiz Muhammad Qasim Siddiqui, was confined in a hospital in London, went under brain surgery and was unable to speak.
4. The respondent's contention that the witnesses must offer themselves for cross-examination heavily prevailed with the learned Judge Family Court. In his view, justice demanded that the right of cross-examining the witnesses, should be extended to the respondent. Thus, by his order dated 10-2-1983, he disallowed the application. The validity of this order has been assailed by the petitioner through this writ petition.
5. On behalf of the petitioner it has been argued that the right of cross-examination, is not the test for ,allowing or disallowing a party to give his evidence by means of an affidavit. According to her learned counsel the bona fide of the applicant, availability or otherwise of the witnesses, the expenses, inconvenience and the delay involved in procuring their presence in the Court, and other similar factors, should serve as a criterion for grant or refusal of such permission but these factors were not at all considered by the learned Court. He went on to argue, as the witnesses are residing abroad, upon the facts of the case, the learned Family Court should have allowed the petitioner's application. The impugned order was thus, stated to be vividly based on misconception of law and vitiated by a manifest failure of exercise of jurisdiction, vesting in the Family Court. In the course of his submission, the learned counsel further pointed out that Hafiz Muhammad Qasim Siddiqui could not survive his illness and expired in the hospital in late February 1983. In this respect, the petitioner has also placed his affidavit, on the record.
6. In reply to these submissions, the learned counsel for the respondent referred to the two affidavits to contend that the petitioner has been trying to fabricate the evidence. He also commented upon the contents thereof and submitted that in the context of matter in issue, these affidavits did not carry any evidential value. He further described the affidavit of Hafiz Muhammad Qasim Siddiqui as merely a statutory declaration, not in consonance with the affidavit, envisaged by the laws of Pakistan and thus, in his estimation it could not have been admitted in evidence. It was urged that subsection (4) of section 11 is merely enabling provision and is to be read alongwith subsection (3) which lays down that a witness shall give the evidence in his own words. Reliance was also placed on the proviso to subsection (1) conferring powers on the Court to call for further examination a witness, whose affidavit has been entertained. As per respondent's counsel, the genesis of these provisions is that only in exceptional circumstances, the Court may allow the evidence of a witness to be given by an affidavit. He thus, supported the impugned order and urged that it fully falls in line with dictates of section 11.
7. The learned counsel also objected to the maintainability of the writ petition. In this behalf he argued, that the impugned order is discretionary, within the jurisdiction of the Family Court, such an order cannot be subjected to writ jurisdiction of the High Court. He cited Anwarul Hassan Siddiqui v.
Family Judge Court No. 11 Karachi and 2 others PLD 1980 Kar. 477, Muslim Commercial Bank v. Ijaz Nisar and others, 1982 CLC 1433, Sabir Shahzad v. Mst. Keenutarr, 1983 CLC 383, Muhammad Hussain Munir v. Sikandar and others, PLD 1974 SC 139, Shamshoo v. Mst. Tahira and another, 1983 CLC 133 and Province of Punjab v. Ch. Fazal Karim, 1983 CLC 325, in support of this proposition. It has been further contended that the impugned order is interlocutory in character, and thus cannot be attacked by invoking writ jurisdiction. Reliance was placed on Syed Shaukat Abbas v. Mst. Bushra Bibi, PLD 1982 Lah. 281, to supplement the submission.
8. To deal with first, the arguments of the respondent's learned counsel, founded on section 11, its subsections (3 & 4) are re-produced below:- "(3) The witnesses shall give their evidence in their own words:- Provided that the parties or their counsel may further examine, cross-examine or re-examine the witness: Provided further (3-A)...
(4) The Family Court may permit the evidence of any witness to be given by means of affidavit:- Provided if the Court deems fit, it may call such witness for the purpose of further examination in accordance with subsection (3) "
' There can be no dispute with the proposition that subsection (4) is not to be read in isolation of subsection (3). In fact, in consonance with the cardinal rule of interpretation of Statute, section 11 is to be considered in its entirety. I do not think that mere reading of these two subsections together is of any aid to the respondent. The wholesome preservation of right of cross-examination, as canvassed by the respondent's learned counsel, can be endured only if section 4 is held A to be controlled by subsection (3) but such an inference is not warrantable, either by the scheme of the section or language thereof. Subsection (4) vests the Family Court with powers to permit the evidence of a witness to be brought on the record by affidavit and to this extent this subsection introduces a matter independent of subsection (3). However, the proviso to subsection (4) confers authority on the Courts, to call for further examination, any witness, who has given evidence, by means of affidavit.
9. The user of the word "may" in subsection (4) signifies that the power given to the Court is not obligatory but is discretionary.
' The learned counsel for the respondent is thus, not wrong in asserting that the Court's power under this subsection, is discretionary and not compulsive. A question, however, arises that how far the exercise of such discretion can be controlled through judicial review. In the first precedent referred to by the learned counsel, the Karachi High Court declined to intervene under its constitutional jurisdiction, in the Family Courts' exercise of discretion, refusing to enlarge time for filing the written statement. In the next ruling in the Muslim Commercial Bank case, in accordance with the provisions of Order XXXVII, rule 3, C.P.C., the Banking Judge allowed a guarantor to defend the suit, subject to the deposit of the entire suit amount in the Court. He chal lenged this order through invocation of writ jurisdiction, which was dismissed on the ground that the impugned order was with jurisdiction and also within the discretion of the Tribunal. These precedents and the other case law cited on behalf of the respondent, reiterate the general rule that an act done in exercise of discretionary powers is not amenable to writ jurisdiction.
10. There are, however, some exceptions to this rule. The arbitrary exercise of such powers and the discretionary orders not made according to the rule of reason, are not immune from judicial review and the precedents in this behalf are not lacking. In Suaannah Sharp v. Wakefield 1891 Appeal Cases 173, Lord Halsbury commented upon the discretionary powers:- 11. "discretion" means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion according to law, and no humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular."
' In re Taylor 46 LJ Ch. 399, Jessel M.R, laid down:- "When I say "the discretionary power of the Judge," I mean, that although the Act gave the power in the most ample terms............ the words are "if he should see fit" yet, of course like every other power given to a Judge, the discretion is to be exercised on judicial grounds, not capriciously, but for substantial reason."
' In Muhammad Akram v. C.A. Saeed PLD 1965 Lah. 703, the expression "as it may think fit" figuring in section 60 of the Electoral College Act, 1964 was construed as:- " According to rule of reason and justice and in accordance with the law and not in accordance with humours, caprice or private opinion................."
' It may also refer here to a judgment under the Income Tax Act 1922 dealing with discretionary powers of the Income Tax Officer. In Commissioner of Income Tax Dacca v. Asiatic Industries Ltd. PLD 1964 Dacca 769, the High Court declined to uphold the discretionary orders of the Income Tax Officer, under section 45 of the Act, as the discretion exercised by him was not found judicious. It is thus, obvious that the Courts have exercised control on discretionary power, when it is shown to have been exercised perversely, unreasonably and in utte disregard of the express provisions of law.
11. I now proceed to examine as to whether the exercise of discretion by the learned Family Court answers the test prescribed by these judicial pronouncements. It is not disputed that both the witnesses resided abroad. Under section 11(2) of the Act, the Family Court has the power to issue summons for appearance of any witnesses but evidently, such power cannot be exercised in respect of witnesses not residing within the territorial limits of Pakistan. The effect of the refusal of the petitioner's application, was that she was required t produce these witnesses at her own responsibility. There is nothing on the record to suggest that the witnesses were under the petitioner's swa y and control and would be ready to travel to Pakistan to enter the witness-box.
Thus, particularly, she had been driven to a state that in case the affidavits are not entertained, she would be debarred from making use of two witnesses. The main object of enacting the Family Courts Act is that the disputes relating to marriage and other family matter, falling within its ambit, be disposed of expeditiously. In this context, the delay, inconvenience, the expenditure to be incurred in obtaining the presence of the witnesses from United Kingdom, their willingness or otherwise to take journey to Pakistan, are relevant consideration, which in exercising its discretion, should have been taken note of by the learned Judge Family Court but those were completely disbelieved by him. The dictum of Hafiz Muhammad Qasim Siddiqui's serious illness was also ignored. Anyhow he has now died and the right of cross-examination in respect of the deceased can longer be exercised.
' The learned Judge adhered only to the right of cross-examination and did not pay any heed to other factors, having a direct bearing on the making of the discretionary order. While emphasising upon the respondent's right of cross-examination, he appears to be oblivious of the rule that the admissibility, of a document is quite different from its evidential value. After permitting the affidavits to be brought on the record, the Court was not precluded from assessing the evidential value thereof. Needless to mention that it is always for the Court to judge that in the circumstances of a given case, what weight can be given to a particular piece of evidence. Divorced from other circumstances of the case, enchoring of the impugned order on mere deprivation of the respondent's right to cross-examine the deponent's would clearly render it an unreasonable, unjust and illegal order. Such an order can successfully be questioned under writ jurisdiction.
12. It is correct that the jurisdictional principle has invariably been considered the basis of judicial review and in fact in Sabir Shahzad v. Mst. Zeenat Ara, Muhammad Hussain Munir v. Sikandar and other precedents, cited by the respondent's learned counsel, the same principle has been discussed and it is held that even if the order of the lower Tribunal is erroneous on facts as well as in law, that would not render it as without jurisdiction. However, in Akbar All v. Razi-ur-Rehman PLD 1966 SC 492, the Election Commission, rejected certain ballot papers, which were free. from defect.
The High Court set aside these orders. The Supreme Court uphold the view taken by the High Court and maintained that an untenable interpretation of law by the Commission which may amount to excess of jurisdiction or failure to exercise of jurisdiction, can be called in question in the High Court.
A survey of the decisions of the Supreme Court, amply suggests that the power to review is no longer limited to the jurisdictional principle; the judicial review has been stretched and error corrected when it appeared on the face of the record though the tribunal acted within the sphere of its jurisdiction. In this connection, reference may be made to Nagin Silk Mills v. Income tax Officer, PLD 1963 SC 322, wherein it has been held: "In case of absence or excess of jurisdiction or where the impugned order suffers from illegality on the face of the record a certiorari may be granted..........................
' This decision was followed in Premier Cloth Mills v. Sales Tax Officer, 1972 SCMR 257. Similarly in Rahim Shah v. Chief Election Commissioner, PLD 1973 SC 24, the remarks of Lord Goddard, L.C.J. in Patents Appeal Tribunal's case, 1957 All R R 227, to the effect that certiorari lies when the Tribunal gives a decision which in the Court's opinion is bad on the face of it, have been quoted with approval. I may further refer here with advantage to the following observations appearing at Page 65 of the report in Shabbir Ahmad v. Kabirun Nisa, PLD 1975 SC 58, which are quite instructive:- "....Lastly, learned counsel has contended that the order of the learned Additional District Judge, even if erroneous in law, cannot be considered to be without lawful authority and, therefore, in the writ jurisdiction, it was rightly not interfered with. An assumption of jurisdiction upon a clear misreading of the provisions of the law is an error apparent on the face of the record and such an error does furnish a ground for interference in the writ jurisdiction."
'It is thus, obvious that the exercise of judicial control on the ground of error of law apparent on the face of the record has been recognized, in law. It is difficult to define with precision, as to what is meant by an error apparent on the face of the record and it is always for the Court, to decide upon the facts of each case, as to whether or not the error is so evident that it may be removed through judicial review. However, in the instant case, for reasons stated in the earlier part of this judgment, I feel, that the impugned order displays an illegality which cannot be overlooked. The doctrine of error within jurisdiction cannot be extended to cover self-evident errors. I have no hesitation in holding that the impugned order suffers from an error apparent on the face of the record and is thus, liable to be set aside.
' The objection rested on Syed Shaukat Abbas v. Mst. Bushra Rani that the impugned order being interlocutory is not liable to be interfered with under writ jurisdiction remains to be considered. I may observe that the High Court's reluctance to interfere with an interlocutory order is not an absolute rule but merly a mediture regulating exercise of its constitutional jurisdiction. Such jurisdiction can necessarily be exercised when the Court i's satisfied that an interlocutory order, determines a substantial matter, or would result in injustice or an irreparable injury to the party. It is clear that the impugned order is not a formal order. It involves determination of valuable rights. In these circumstances, merely because, the order is interlocutory, is no ground for refusing the writ jurisdiction.
13. For the foregoing reasons this writ petition is accepted, and the impugned order declared to have been passed without lawful authority. Consequently, the petitioner's application shall be treated as pending and disposed of afresh, in accordance, with law. The learned Family Court shall proceed with the matter conditionally. The parties to bear their own costs.