' The brief facts out of which present writ petition arises are that the petitioner filed a contempt petition against the respondents before the learned trial Court on the ground that the respondents had violated the status quo order of Civil Court dated 1-10-2001 and forcibly took over the possession of the house in-question. The petitioner being aggrieved filed aforesaid contempt petition. The learned trial Court has framed the issues on 18-4-2002 and sub subsequently recorded the evidence of the petitioner consisting of A. Ws.-1, 2 and 3 and documentary evidence was also placed on record. The affirmative evidence was closed. The petitioner submitted an application under Order 16, rule 1 read with section 151 for summoning Malik Imtiaz Ahmad, D.S.P./Investigating Officer. The learned trial Court adjourned the case to file reply by the respondents of the , aforesaid application of the petitioner for 24-11-2003. On the said date, the learned trial Court without receiving reply from the respondents, dismissed the application of the petitioner vide order dated 24-11-2003. The petitioner being aggrieved filed revision petition before the learned District Judge, Sheikhupura, who dismissed the same vide order dated 22-3-2004, hence the present writ petition.
2. The learned counsel of the petitioner submits that the learned trial Court committed the material irregularity to decide the application of the petitioner without receiving reply from the respondents in terms of order dated 8-11-2003. He further submits that both the Courts below have decided the application of the petitioner on technical grounds without applying the judicial application of mind.
He further submits that miscarriage of justice has occasioned by both the Courts below, therefore, this Court has ample jurisdiction to rectify the same while exercising powers under Constitutional jurisdiction. He further submits that miscarriage of justice has occasioned by both the Courts below, therefore, this Court has ample jurisdiction to rectify the same while exercising powers under Constitutional jurisdiction. He further submits that in the interest of justice and fair play, the application of the petitioner should be allowed by the Courts below but both the Courts below dismissed the same without applying its judicial application of mind.
3. The learned Law Officer entered on Court's call, he submits that the Constitutional petition is not maintainable.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
5. It is better and appropriate to highlight the basic facts in chronological order to resolve the controversy between the parties:--
(i) The learned trial Court framed the issues on 18-4-2002.
(ii) The statements of three witnesses of the petitioner, were recorded and documentary evidence was placed on the record. The affirmative evidence was also closed by the learned trial Court as is depicted from orders of the Courts below as well as order sheets attached by the petitioner with the Constitutional petition.
(iii) The relevant interim orders of the learned trial Court are reproduced here to resolve the controversy between the parties:-- "Order dated 18-10-2003 {{URDU TEXT}} "Order dated 8-11-2003 {{URDU TEXT}} "Order dated 24-11-2003 Present: Counsel for the parties.
' Vide separate order of even date, recorded in English, application under Order 16, rule 1, C.P.0 filed by the applicant/plaintiff has been dismissed .
' Absolutely a last opportunity is afforded to the applicant/plaintiff for production of his remaining evidence for 22-12-2003.
' It is also admitted fact that the name of Malik Imtiaz Ahmad, D.S.P./I.O. The witness of the petitioner allegedly to be summoned, is not mentioned in the list of witnesses. It is settled principle of law that witness not mentioned in the list of witneisses, cannot be called without permission of the Court, which is a discretion of the Court and the Court has to exercise discretion after application of mind, at the time of exercising power of discretion. It is also condition precedent to see the conduct of the party who wants to secure the discretionary relief. As mentioned above, three witnesses of the petitioner and the documentary evidence were brought on record. The affirmative evidence was also closed, but the petitioner was given last opportunity vide order dated 18-10-2003 and then the case was adjourned for 18-11-2003, but the petitioner in spite of this fact, did not produce any witness and filed an application under B Order 16, rule 1 read with section 151, C.P.0 with the prayer for summoning the said witness. In case, the aforesaid circumstances are put in juxtaposition, then it is crystal clear that the petitioner has only filed aforesaid application mala fide simply to prolong the proceedings and both the Courts below have exercised its discretion with cogent reasons as is evident from para No.3 of the impugned judgment of the Revisional Court dated 22-3-2004.
"Syed AZMat Ali Shah v. Chief Settlement etc." PLD 1964 SC 260.
As mentioned above, both the Courts below have refused to exercise their discretion in favour of the petitioner, therefore, the Constitutional petition is not maintainable as per principle laid down by the Honourable Supreme Court in the following judgments:-- "Khuda Bakhsh v. Muhammad D Sharif and others" 1974 SCM R 279.
"Muhammad Sharif, etc. v. Muhammad Afaal etc." PLD 1981 SC 246.
"Abdul Rehman Bajwa v. Sultan Ahmed etc. PLD 1981 SC 522.
' Even otherwise, the order as well as judgment of Courts below is in accordance with parameters prescribed under Order 16, rule 1 of C.P.0 and the principle laid, down by the Superior Courts while interpreting afore.Said rule.
6. It is also admitted fact that both the Courts below have concurrently refused to exercise discretion after proper appreciation of evidence on record -and application of mind and this Court has no jurisdiction to substitute its own findings in place of findings of the tribunals below while exercising power under Article 199 of. The Constitution, as per principle laid down by the Division Bench of this Court and by the Honourable Supreme Court in the following judgments:-
7. It is also settled principle' of law that summoning of evidence in pursuance of application at late stage is basically matter of discretion of trial Court which cannot interfere in revision petition unless discretion is exercised arbitrarily', as per law laid down in the following judgments:- "Weli Muhammad and 2 others v. AAKK" 1988 CLC 1840.
"Ghulam Muhammad v. Siraj Ahmed Khan" 1988 CLC 2175.
' It is also the duty of the petitioner to show . Reasonable cause for non-summoning the witness within reasonable time. It is also settled principle of law that case ripe of judgment, application for summoning of witness, is liable to be dismissed, as per law laid down in "Rab Nawaz Khan v. Shah Hand and another" 1999 M LD 2160. The petitioner himself, failed to file an application for summoning of the said witness for a long time, therefore, both the Courts below were justified not to allow the petitioner to produce the said witness which is in accordance with law laid down in "Sutlej Cotton Mills, Okara v. Hashim and Company 1988 M LD 803. It is also settled principle of law that the Court has power to allow the witness to summon, whose name is not included in the list of witnesses, if good cause for summoning of his name from the list, has been shown subject to the condition that no prejudice was likely to be caused to other side. Coupled with the principle that Courts are liberal to allow the application for cause of justice as Courts are not slaves of Piocedure and machinery of provisions of law to do justice, therefore, the Courts below have exercised their discretion within parameters prescribed by the Superior Courts, keeping in view the conduct of the party, where the party itself has approached the Court by filing of an application to produce the witness far the purpose to filling missing link of evidence which is not permissible in the eye of law, as per law laid down in "Altaf HuSsaia v. Lal Khan 1993 CLC 1580.
8. In case as mentioned above, all the facts are put in juxtaposition, then the petitioner has filed an application simply to cause delay qua finalization of the case, therefore, both the Courts below were justified to disallow the application of the petitioner for summoning the witness which is in accordance with law laid down in "Mst. Zubaida Begum etc. v. District Judge 1992 ALD 425(2). The petitioner in the present case, failed to produce the witness even after the last opportunity granted by the learned trial Court, therefore, both the Courts below were justified not to exercise discretion in favour of the petitioner, as per law laid down in "Dhoop Khan v. Muhammad Yaseen and others 1995 M LD 868. The aforesaid proposition of law is also supported by the following judgments:-- "Mst. Musarrat Bibi etc. v. Tariq Mahmood Tariq 1999 SCM R 799.
' In view of what has been discussed above, this Constitutional petition is not maintainable and the same is dismissed.