' Facts giving rise to this civil revision are that the respondent, Ch. Muhammad Azhar Shaheen, filed a suit against the petitioner, Muhammad Amir Qasmi, for specific performance of agreements recorded in two deeds, dated the 14th May, 1982 and 20th May, 1982, in respect of sale of certain land. The suit was resisted by the petitioner whereupon issues were framed by the Civil Judge before whom the suit was pending. ,Thereafter, the respondent adduced evidence which included the statement of Muhammad Sarwar (P. W. 2). This witness is alleged to have scribed the above agreement deeds. When the petitioner was called upon to produce his evidence, he summoned the said Muhammad Sr rwar also as a defence witness. However, when Muhammad Sarwar appeared before the learned Civil Judge to make statement as a defence witness, it was objected by the respondent that since he had already been examined as his (respondent's) witness he could not be examined again as a witness of the petitioner. The respondent's objection was sustained by the learned Civil Judge by means of order, dated the 20th February, 1984, which has been challenged by the petitioner by filing the instant revision.
2. It was contended by learned counsel for the petitioner that although Muhammad Sarwar could not be re-called for the purpose of cross-examination by the petitioner yet the petitioner could produce him as a defence witness. In this connection, reliance was placed by him on Ahsan Ilahi v.
Messrs Habib Bank Ltd. (1) and Ghulam Murtaza v. Muhammad Ilyas and 3 others (2).
3. In reply, it was submitted by learned counsel for the respondent that the petitioner could ask any question or have any document proved by Muhammad Sarwar when he appeared as his (respondent's) witness and if he had failed to do so, he could not be permitted to fill up the lacuna in his case by examining him as his (petitioner's) own witness. As for the case of Ahsan Ilahi, it was maintained by learned counsel for the respondent that no ruling had been given by the Supreme Court while deciding the said case.And, therefore, it did not advance the case of the petitioner. In regard to the case of Ghulam Murtaza, his plea was that the said case related to the absence of the name of anv witness from the list of witnesses and had no bearing on the question under consideration.
4. In the application made brthe petitioner to summon Muhammad Samar as a defence witness, it was submitted by him that he wanted to prove agreement deed, dated the 22nd May, 1982, which was alleged to have been scribed by Muhammad Sarwar. The said agreement deed was relied upon by the petitioner. Muhammad Sarwar was also cited by the petitioner as one of his witnesses.
The respondent too had cited
(1) 1981 SCMR 336 (2) PLD 1980 Lah. 495 Muhammad Sarwar as his witness to prove the agreement deeds, dated the 14th and 20th May, 1982, on which his suit was founded. In the circumstances, it was fully known to the petitioner (defendant) that since the evidence of the respondent (plaintiff) was to be recorded first, Muhammad Sarwar would appear as a witness of the respondent. The petitioner could, therefore, very well get the agreement deed, dated the 22nd May, 1982, proved by Muhammad Sarwar when his statement was recorded as a witness of the respondent. If he had failed to do so, the petitioner is himself to blame for the consequences of his omission.
5. It was explained by learned counsel for the petitioner that when Muhammad Sarwar appeared as the respondent's witness, the petitioner put questions to him to prove the execution of agreement deed, dated the 22nd May, 1982, but he expressed his inability to answer those questions saying that he was not then having with him the register in which the said agreement deed had been entered,
6. This plea of learned counsel for the petitioner is an afterthought inasmuch as it was neither raised in the application submitted by the petitioner to summon Muhammad Sarwar as a defence witness nor in the revision petition before me. It is also not supported by the record. It was conceded by learned counsel for the petitioner that the said agreement deed was with the petitioner even on the date when Muhammad Sarwar had appeared as a witness of the respondent. Muhammad Sarwar had simply to identify his handwriting and signature on the above agreement deed. This he could do even if the register concerned was not with him on the said date. It seems that the petitioner had not cared to have the agreement deed in question proved by Muhammad Sarwar when he made statement as the respondent's witness and, therefore, he cannot be permitted to cover up his shortcomings by examining Muhammad Sarwar as his own witness.
7. I agree with learned counsel for the respondent that no law was laid down by the Supreme Court in the case of Ahsan Ilahi relied upon by learned counsel for the petitioner. Relevant observations made in that case read as follows :- "After we had heard the learned counsel for the petitioner and the respondent, who had filed caveat, we have come to the conclusion that there is no merit in this petition. However, during the course of the argument, it appeared that though the petitioner would have no right to re-call the witness Pir Bhai for cross-examination he could not be prevented from examining this witness in his defence. Since the witness was outside Pakistan we enquired from Mr. Rahimtoola, the learned counsel for respondent bank if the Bank would have any objection for a commission being issued for examination of this witness as petitioner's witness. The learned counsel took time to obtain instructions and has now filed an application in which it is stated that if the petitioner desires at his own costs to examine the witness Pir Bhai as his witness in the suit upon commission on interrogatories and the bank reserving its right to cross-examine by cross-interrogatories the bank will not oppose such commission application in the suit. It is also stated in the application that instead of original documents, photo stat may be included in the proposed commission so that the originals are not lost or damaged in transit.
(underlining is mine). *Rim in italics)
' Mr. Akhtar Mahmood, the learned counsel for the petitioner is agreeable to the aforesaid suggestion made on behalf of the Bank though some apprehension was expressed by him that the learned trial Judge may not allow the issue of commission. We, however, find that the issue of commission will be sought with the consent of the parties and being even otherwise in the interest of justice apprehension expressed is unjustified."
' I believe that by making the observations underlined* by me the Supreme Court desired to convey that during the course of arguments advanced before it, learned counsel for the parties had given an impression that although the witness of the plaintiff could not be re-called for cross- examination yet he could be examined at a defence witness. Precise arguments addressed by them are not known. It seems that the whole matter before the Supreme Court was disposed of on the basis of an agreed arrangement. In my humble opinion, therefore, the case of Ahsan Ilahi can hardly be treated as an authority for the proposition that the defendant has a right to examine any person as a defence witness even though he has already been examined as a witness of the plaintiff. If this proposition is accepted as a general rule, the defendant would be at liberty to examine in defence every witness who has been examined by the plaintiff in support of his claim and vice versa. Such a course, I am afraid, would offend against the orderly procedure laid down by the law on the subject.
8. In exceptional cases, under Order XVIII, rule 17 of the Code of Civil Procedure, the Court can re-call a witness who has been examine by any party. It is discretionary with the Court to do so, suo motu o at the request of any party. After such witness is brought before th Court, it can put questions to him and thereafter the parties will be entitled A to cross-examine him. The defendant may, therefore, if so advised, invoke the provisions of Order XVIII. Rule 17 of the Code of Civil Procedure, to bring back before the Court a witness who has been examined by the plaintiff but there is no law where under he can, as of right, examine such witness as a defence witness.
9. It has not been ruled in the case of Ghulam Murtaza cited. By learned counsel for the petitioner, that if a party has, somehow or the other, brought a person before the Court, it is obligatory for the Court to record his statement. What has been laid down in the cited case is that if any witness of a party is present before the Court on the date fixed for the evidence of the party, the Court can not refuse to record his statement simply for the reason that his name did not figure in the list of witnesses furnished by the party.. Ghulam Murtaza's tare does not deal with the question agitated before me, namely, whether a person who has testified as a witness of the plaintiff can be produced as a defence witness. The case under report is, therefore, of no avail to the petitioner.
10. In view of the above discussion, I hold that the petitioner could not examine Muhammad Sarwar as his witness after he had deposed as a witness of the respondent. The order under revision is, therefore, not open to any legitimate exception.
11. Resultantly, this civil revision fails. It is dismissed with costs.