Dawood Khan Vs Muhammad Fazil & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department) W.P No. 1132-M/2023 with Interim Relief Dawood Khan Vs. Muhammad Fazil & others.

Present: Barrister Dr. Adnan Khan, ASC for petitioner. Mr. Sabir Shah, ASC for respondents

Date of hearing: 22.09.2025

JUDGMENT

SABIT ULLAH KHAN, J.- The present petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, lays a constitutional challenge to the concurrent findings rendered by learned Civil Judge-I / I.Q, Malakand, and subsequently affirmed by the learned District Judge, Malakand vide orders dated 19.06.2023 & 13.09.2023 respectively, culminating in the denial petitioner’s request to cross-examine the witnesses produced by the respondents, solely on the basis of an endorsement made by his counsel on the margin of the order sheet.

2.Through this writ petition, the petitioner seeks judicial redress against what is asserted to be a grave miscarriage of justice rooted in the procedural rigidity and neglect of substantive legal entitlements. A controversy arises out of a declaratory suit filed by the petitioner Sikandar Hayat/* (S.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

asserting his statutory and sharia based right of inheritance in the estate of his diseased father, Nowsherawan (late). The parties are inter se legal heirs and the petitioner, being the natural son of the deceased, sought declaration of his share and protection of his legal entitlement.

3.Upon service of summons, respondents No. 3 & 4, submitted cognovits, thereby admitting the claim.

However, respondent No.1, resisted the claim by filing a contesting written statement, necessitating adjudication on disputed question of facts. Upon competition of pleadings, issues were framed and the matter was set for recording of evidence. The petitioner led his evidence and was duly cross-examined by the contesting respondents.

Subsequently, the respondents filed affidavits. In view of examination-in-chief, in accordance with Section 11 of the Nizam-e-Adl Regulation, 2009. However, on 05.04.2023, when the matter was fixed for production of witnesses for their formal examination-in-chief and subsequent cross- examination, learned counsel for the petitioner made an endorsement on the order sheet to the effect that he did not intend to cross-examine the witnesses, this was recorded by the learned trial Court as an expressed waiver. Thereafter, the petitioner, asserting that no such instructions were ever issued to his counsel and that the waiver was unauthorized, Sikandar Hayat/* (S.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

promptly moved an application seeking recall/review of the said order. The application was dismissed by the learned trial Court vide order dated 19.06.2023, and the appellate Court, concurring with the findings below, dismissed the Civil Revision vide order dated 13.09.2023. Aggrieved thereby, the petitioner invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution with the following prayer: - It is, therefore, humbly prayed that on acceptance of this petition, the impugned judgment and order dated 13.09.2023 passed by District Judge, Malakand and order of Civil Juge-I, dated 19.06.2023, be declared as illegal and the same be set aside. Consequently, while allowing the petitioner’s application, order sheet dated 05.04.2023 may be ordered to be recalled and the petitioner’s witnesses may be ordered to be intact. Any other remedy though may not specifically prayed for but which circumstances of the case would require in the interests of justice may also be granted.

4.The pivotal question that calls for resolution is whether a litigant can be permanently deprived of his statutory and constitutional right to cross-examine the opposing party’s witnesses solely on the basis of waiver recorded by his counsel, especially in circumstances where:- i. The examination in chief has not yet commenced? ii. Affidavits were on record but not being adopted in Court? and iii. The litigant himself, neither consented to nor ratified such waiver?

Sikandar Hayat/* (S.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

5.Cross-examination is the corner stone of adversarial adjudication. It constitutes the principal mechanism by which the truth of testimony evidence is tested. The right to cross-examine is not merely procedural, it is a substantive right, intricately connected with the guarantee of fair trial under Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973. It is settled law that evidence not subjected to cross-examination cannot form the basis of judicial determination, except where the right is expressly waived off by the party after being fully informed of its legal consequences.

6.In the present case, it is undisputed that the respondents’ witnesses had submitted affidavits but their former appearance before the Court for the purpose of examination-in-chief had not occurred. The endorsement made by the learned counsel for the petitioner on the margin of the order sheet was, therefore, premature. It is equally clear from the record that the petitioner acted without delay in disowning the said waiver and moved the learned trial Court for redress.

7.It is an established principle of procedural law that while an act performed by the counsel is generally binding on the litigant, the Courts must examine whether Sikandar Hayat/* (S.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

such act was authorized, whether it resulted in prejudice to the party and whether the act amounted to waiver a fundamental right. The superior Courts have repeatedly held that waiver of statutory right must be intentional, informed and unambiguous. Where there is doubt, the Courts are required to lean in favour of safeguarding the litigant’s substantive rights rather than upholding technical waivers which were neither instructed nor rectified. Moreover, a rigid and unyielding application of procedural endorsements particularly those involving waiver of cross-examination cannot be permitted to over-right the over-reaching mandate of doing complete justice between the parties. Justice must not only return but must manifestly be seen to be done. In inheritance matters, which engage both civil and religious obligations, greater circumspection is warranted and Court must act with lighten sensitivity to prevent the permanent exclusion of lawful claims based on technical missteps. It is a settled law that poor and illiterate litigant should not suffer due to mistake of Court or counsel1. In the case2, it was held that observance of rules of procedure was fundamental to course of litigation, however, Courts must also be aware that too rigid adherence to such rules in certain circumstances may inappropriately and unjustly deprive a party of his Mirbad Khan Vs. Muhammad Umer and others (2021 CLC 1530) (Syed Aakif Ali Shah Vs. Muhammad Ijaz and others (PLD 2021 Lahore 688) Sikandar Hayat/* (S.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

rights. Recently, the learned Lahore High Court in the case3 has held that statement made by the counsel for compromise was nothing but a deviation from authority conferred upon him.

8.Moreover, Article 133 of the Qanun-e-Shahadat Order, 1984, grants the Court discretion to recall any witness for further examination-in-chief, cross-examination or re-examination, which, for convenience, is reproduced below:-

1)Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined then (if the party calling him so desires) re-examined.

2)The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.

3)The re-examination shall be directed to the explanation of matters referred to in cross- examination and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine that matter.

The above provision is enabling in nature and couched in liberal terms. It reflects the legislative intention to uphold the integrity of the adjudicatory process by allowing the Court to correct or revisit procedural lapses where necessary to prevent any justice.

Munir Ahmad Khan Vs. Burma Shell Oil Company and another (PLD 2025 Lahore 396) Sikandar Hayat/*

(S.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN

9.In the instant case, the learned trial Court has not only failed to exercise this discretion but also elevated a procedural endorsement to a position that eclipsed the petitioner’s constitutional right to confront the evidence against him. The learned appellate Court, instead of correcting the course, mechanically affirmed the trial Court’s order, thereby compounding the miscarriage of justice.

11.In view of the foregoing, the instant writ petition is allowed, and the impugned orders dated 19.06.2023 and 13.09.2023 passed by the Courts below are set aside and the endorsement dated 05.04.2023, made by the learned counsel for the petitioner is hereby declared without legal effect. The learned trial Court is directed to recall the respondents’ witnesses, record their examination-in-chief in open Court and afford the petitioner a fair and meaningful opportunity to cross-examine them. The matter shall thereafter be proceeded expeditiously and in accordance with law.

Announced

Sd/-

JUDGE

Sikandar Hayat/* (S.B) HON’BLE MR. JUSTICE SABIT ULLAH KHAN