' The facts forming the background of the instant Constitution petition are that the petitioner filed an application for the custody of minor against respondent No,2 in the Court of learned Guardian Judge, Islamabad. The said, application made under section 25 of the Guardian and Wards Act having been duly inquired into and investigated and after recording of the evidence of the parties was dismissed by the learned Guardian Judge. Feeling himself aggrieved of the dismissal of his application made for the custody' of the minor as aforesaid by the learned Guardian Judge, the petitioner has preferred an appeal against the decision of the learned Guardian Judge, which appeal according to the petitioner's showing is still pending before the learned Appellate Court. It is the case of the petitioner that during the pendency of the appeal, he moved an application under Order 41, Rule 27, C.P.C. For producing additional evidence in the appeal. The learned Appellate Court seized of the appeal after calling for a reply of the application made under Order 41, Rule 27, C.P.C. From respondent No,2, the contesting respondent, dismissed the same vide order, dated 25- 2-1999. It is this order of the learned Appellate Court which is sought to be impugned in the instant Constitution petition.
2. Mr. Abdul Basir Qureshi, Advocate, learned counsel for the petitioner appearing in support of the Constitution petition has raised the following contentions:-
(i) That the question in issue before the learned Guardian Judge as also I before the learned Appellate Court as to whether the petitioner or respondent No,2 were proper persons to be entrusted with the is today of the minor. This being so, to evidence which was sought to be produced by the petitioner by way of additional evidence was such as lowed respondent No,2 to be a person not fit enough to be entrusted with the custody of the minor and at this way the evidence sought to produced was relevant for the purposes of inquiry to be made in the appeal;
(ii) That the real brother and the sister of despondent No,2. Were sought to be examined as either Court witnesses r witnesses of the petitioner to depose against respondent No,2 but the learned Appellate Court did not permit this being done and that the order passed by the learned Appellate Court refusing the same amounted to acting illegally and with material irregularity;
(iii) that the documents sought to be produced by the petitioner were certified copies of the judicial record about the authenticity whereof no doubt could be expressed. The learned Appellate Court having shut out such documents from being brought on the record, acted without jurisdiction.
3. I have evaluated the submissions made by the learned counsel for the petitioner and have gone through the order passed by the learned Appellate Court whereby the application for additional evidence has been refused but do not feel persuaded to interfere with the order passed by the learned Appellate Court. The order passed by the learned Appellate Court is a speaking order and proceeds on sound judicial reasoning. The petitioner has approached this Court in the extraordinary Constitutional jurisdiction. No interference is called for to be made in the order impugned before this Court unless it can be shown or established by the learned counsel for the petitioner that the order passed by the Court below suffered from some jurisdictional defect. Such however, is not the case. The Court below had the jurisdiction to allow the evidence or to disallow the same. The fact that it had disallowed the evidence would not amount to rendering the order passed by it as one without jurisdiction. The petitioner had full opportunity to lead whatever evidence he wanted to produce in support of his version of case. Likewise, respondent No,2 had produced her evidence in support of her version of the case. It was after recording of evidence of both the parties that the learned trial Judge, decided the fate of the application made under section 25 of the Guardian and Wards Act. The evidence brought by the parties on the record was sufficient enough to enable the Court below to decide the fate of the application. The evidence sought to be produced by the petitioner was admittedly an additional evidence. The settled position of the law with respect to such an additional evidence is that the same cannot be produced by any of the parties as a matter of right. For, they had already exhausted their rights to produce their respective evidence at the trial. Additional evidence can be permitted to be brought on the record only if the Court comes to the conclusion that the evidence already on the record is not sufficient, enough to enable the Court to render an effective judgment. It is, in other words, the requirement of the 'Court to call for an additional evidence. Should it be driven to the conclusion that the evidence already on the record brought by the parties is such as cannot be made the basis of disposing of the controversy before the Court effectually. Such, however, not being the case and it being not the requirement of the Court, the additional evidence sought to be produced by the petitioner could not be produced as a matter of right. True it may be that an application for additional evidence invariably emanates from one of the parties to the litigation yet the fact that it is so does not mean that it is the right of any of the parties or it is the requirement of the said party that the additional evidence should or should not be permitted to be produced. For, essentially it is the requirement of the Court and not that of a party to the litigation. If the Court feels incapacitated for lack of sufficient evidence on the record to enable it to effectually dispose of the controversy before it, it can permit any of the parties to produce or call any of the parties to produce additional evidence. Now, in this particular case it is the petitioner who is insisting to produce the additional evidence. It is not the Court which is asking for the additional evidence on the ground that the evidence already brought on the record by the parties is not sufficient to enable it to decide the case before it. This, thus, not being the requirement of the Court, the additional evidence sought to be produced cannot be produced as a matter of right. The learned Appellate Court has committed no illegality by refusing the application made by the petitioner for the purpose. The Constitution petition is wholly misconceived and is without any merit and is dismissed as such.