ABDUL MAJEED MALLICK, CJ.- The appeal is addressed against the order of learned Sessions Judge, Rawalakot, passed on February 26, 1991, whereby the revision petition against the order of Magistrate 1st Class, Hajeera, passed on February 25,1990, was maintained.
2. This matter has arisen out of proceedings under Section 488, Cr.P.C., moved by Mst. Amir Jan, against Muhammad Fazil, her husband, for payment of maintenance allowance. After filing written statement on behalf of the non applicant-petitioner, Mst. Amir Jan, applicant, was ordered to lead evidence in support of her respective claim. This order was passed on November 16, 1988. On February 8, 1990, evidence of witness produced by Mst. Amir Jan was recorded. Muhammad Fazil was personally present but his Counsel was absent. He applied to the Court for adjournment to enable him to cross-examine the witness. The application was turned down. Moreover, Muhammad Fazil was ordered to lead his evidence, if any, on the next date. The witnesses of Muhammad Fazil appeared on July 6 and August 9. Their evidence was recorded accordingly. The case was adjourned to September 9 for evidence of Muhammad Fazil. As the Counsel of Muhammad Fazil was not present on that day, the case was further adjourned. The evidence of Muhammad Fazil was recorded on October 8,1990. The case was at the final stage when on January 23,1991, an application was moved on behalf of Muhammad Fazil wherein it was prayed that the witness of Mst. Amir Jan who appeared bn February 8, 1990, may be recalled for cross- examination by the Counsel who represented Muhammad Fazil. This application was turned down.
3. The aforesaid order was challenged in revision before the learned Sessions Judge without success. In fact, the order of the learned Sessions Judge is not appealable. Therefore, the appeal is treated as revision petition and is disposed of accordingly.
4. The scheme of law applicable to recording of evidence of witnesses, is contained in Sections 137 and 138 of the Evidence Act. It postulates that the party which is directed to lead its evidence, may produce the witness and examine him. The examination of the witness by the party calling him in the Court is called examination-in-chief. The examination of the witness by an adverse party is called cross-examination. The examination of the witness subsequent to the cross- examination by the party who called him, is termed re-examination. Whenever the witness is called by a party, it is the right of the adverse party to cross-examine such witness, to shatter its testimony and also to get support in favour of its defence or counter claim. This celebrated rule is adhered to throughout the civilized world, in all Courts of law as it is deemed the best method or device to sift the truth from the falsehood. By practice and precedents the rule has attained the shape of a legal right.
Therefore, adverse party against whom a witness disposes, is vested with a legitimate right to cross-examine the witness.
5. It is enjoined upon the trial Court or the Court which records the evidence of the witness, to provide opportunity to the opposite party to cross- examine the witness. It is essential and obligatory on the Court to allow the opposite party to cross-examine the witness and whenever the Court fails to fulfil its duty by providing opportunity of cross-examination to the adverse party, such negligence or omission of the Court is considered violative of the legitimate right of cross- examination.
6. In unique situation where the Court considers that on account of its negligence or omission, or inaptitude or inefficiency, a party is deprived of right of cross-examination of the witness of the opposite party and is likely to suffer for such acts, the legislature clothed the Court with inherent jurisdiction to come to the aid of such party by providing the opportunity of cross-examination by recalling the witness. This authority of the Court was framed in the shape of provisions of Section 540 of the Code. The provisions of Section 540, are quite Comprehensive and these provisions can be invoked in one of such eventualities which are contemplated within frame-work of this Section.
There is no dispute that the trial Court and this Court are well empowered to come to the aid of an aggrieved party and to protect his rights, to avoid injustice but while doing so, it is equally enjoined upon the Court to ensure that the prayer of the party seeking assistance of the Court was not malafide or an abuse of the process of the Court.
7. In the present case, as mentioned earlier, the petitioner was present personally at the time of recording the evidence of the witness. He requested the Court for adjournment on account of absence of Counsel. The absence of his Counsel was not explained well in the application before the lower Court nor before this Court today. Therefore, mere absence of the Counsel was not sufficient cause unless it was satisfied that the absence of the Counsel was bonafide.
8. It is noticed that despite the fact that the petitioner was present personally. The trial Court failed to allow the petitioner to cross-examine the witness himself. The order of the trial Court is quite silent on that score and does not reflect that the opportunity was given to the petitioner to cross- examine the witnesses himself, in absence of his Counsel. The order of the trial Court was defective on that score. It is, therefore, safe to conclude that the petitioner was deprived of legitimate right to cross-examine the witnesses.
9. This matter is of urgent nature as Mst. Amir Jan wife of Muhammad Fazil approached the Court for her assistance, to secure maintenance allowance from her husband. The application was moved on March 6, 1988. It has already consumed more than 3 years and 3 months. Such matters being of urgent nature, it was imperative that the matters relating to. Provision of maintenance allowance to wife and children be disposed of expeditiously. The other aspect of the case is that the application was moved at a very late stage after concluding the evidence of the petitioner. The petitioner slept over the application was moved after about 2 years, after recording the evidence of Jalal, Ishaque, Muhammad Sharif and Mst. Amir Jan. A heavy duty is, therefore, cast upon this Court as well, to administer justice with even hands.
10. In presence of the reasons listed above, the prayer of Muhammad Fazil is grants , but subject to the conditions that: i. Necessary expenses for resummoning the aforesaid witnesses shall be paid by him; ii. The expenses shall be deposited with the Court within a week from the date of this order; iii. He shall also compensate Mst. Amir Jan by paying her costs in the sum of Rs.500/-. The costs is imposed to compensate Mst. Amir Jan as the application was moved after a pretty long time, when the inquiry reached at final stage; and iv. That the costs shall be paid to Mst. Amir Jan and not to her Counsel, before issuing precess to the witnesses.
The petition is accepted and the impugned orders are set aside. Parties shall appear before the Sub Judge, Magistrate 1st Class, Hajeera, on June 20 1991.