Muhammad Iqbal vs Muhammad Ameer

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

C.R.No. 173 of 2026

Muhammad Iqbal. Vs. Muhammad Ameer.

Sr. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties’ counsel, where necessary proceedings 02.02.2026. Rao Muhammad Yasir Yamin and Mr. Muhammad Sajid Mirani, Advocates for petitioner.

Through this Civil Revision filed under Section 115 C.P.C, the petitioner/defendant (Muhammad Iqbal) has called in question closure of his right to cross-examine the respondent’s witnesses through order dated 22.01.2026 (‘Impugned order’) passed by the learned Additional District Judge, Kabirwala (‘Trial Court’) in a suit for Recovery of Rs.20,00,000/- filed by respondent/plaintiff (Muhammad Ameer) against him; seeks another opportunity to cross-examine the respondent’s witnesses by setting aside the impugned order by claiming that the said order suffers from jurisdictional defect of misreading and non-reading of record of the case.

2.Perusal of the record shows that respondent/plaintiff filed a suit for recovery of Rs.20,00,000/- under Order XXXVII Rule 1 and 2 C.P.C against the petitioner/defendant by claiming that due to old acquaintance and good relations with the petitioner, there was a relationship of trust between the parties, whereby the parties used to borrow and repay money to each other. It is alleged that the petitioner borrowed from the respondent an

C.R.No. 173 of 2026

amount of Rs. 20,00,000/- and for repayment of said amount, issued a cheque No. 00000001 of A/c No. 0024527000615203 dated 24.10.2024 drawn on HBL Branch Chopar Hatta, which bounced on presentation on the said date resulting in filing of afore-mentioned recovery suit. The petitioner by filing application for leave to defend contested the said suit, which application was allowed subject to furnishing of surety bond equal to the claimed amount and 6-issues were framed on 15.09.2025, whereupon the respondent got recorded examination-in-chief of PWs 1 and 2 on 17.11.2025 and matter was adjourned at the request of petitioner for cross-examining the said witnesses for 04.12.2025 when witnesses were not available and at the request of the respondent, the matter was adjourned to 18.12.2025 and then to 12.01.2026, when the witnesses were again not present and matter was adjourned at the request of the respondent with final opportunity and on 22.01.2026 none appeared on behalf of the petitioner/defendant and his right to cross-examine the witnesses of the respondent was closed. The operative portion of impugned order dated 22.01.2026 is reproduced below:- “Rana Akhlaq Ahmad learned counsel for the plaintiff.

Nemo for the defendant.

No one appeared on behalf of the defendant. As per record, after submission of written statement, the examination-in-chief of the plaintiff as PW-1 & PW-2 was recorded on 17.11.2025 and matter was adjourned to 04.12.2025 for cross examination on said PWs at the request of learned counsel for the defendant. But despite availing multiple adjournments, leaned counsel for the defendant has not cross- examined the witnesses. Even today i.e. 22.01.2026, no one appeared before the court on behalf of the defendant despite last and final opportunity, and there is no explanation of non

C.R.No. 173 of 2026

compliance of the court orders, resultantly, in view of the conduct of the defendant, his right to conduct cross examination on PWs is closed/struck off. Now to come up on 12.02.2026 for further evidence of plaintiff.”

3.The afore-referred order shows that despite the fact that the petitioner had not entered appearance, the attendance of the witnesses of the respondent was also not marked on the said date and the court observed that despite availing multiple adjournments, the petitioner had not cross-examined the PW-1 & PW-2, whose examination-in-chief had been recorded on 17.11.2025, while ignoring the fact that on the last three dates, request for adjournment was not made by the petitioner rather the same was made on behalf of the respondent as his witnesses were not available. Moreover, on the fateful day i.e. on 22.01.2026 witnesses of the respondent were again not available in the court, which is evident from the attested copy of the order sheet of the said date, wherein they are not shown to be in attendance, to which presumption of authenticity is attached in terms of Article 129 illustration (e) of Qanun-e- Shahdat Order, 1984. Learned Addl. District Judge, who had cognizance of the matter, without perusing previous order sheets including the attendance of the respondent’s witnesses closed the right of the petitioner to cross-examine them, which could not have been done for the reason that for closure of right for cross-examination, attendance of the witnesses was condition precedent and non-availability of respondent’s witnesses on the fateful day could not be used against the petitioner despite his absence from the court and closing the right of the petitioner to cross-examine the respondent’s witnesses despite the

C.R.No. 173 of 2026

fact that witnesses were not available in the court on the fateful day amounts to punishing the petitioner for the fault of respondent and is tantamount to putting the cart before the horse, which is not permissible in view of the principles laid down in judgments reported as Jurists Foundation through Chairman versus Federal Government through Secretary, Ministry of Defence and others (PLD 2020 SC 52), Ayaz Ahmad Khan versus State (PLD 2011 SC 171), Muhammad Saleem versus Additional District Judge, Gujranwala and 2 others (2024 MLD 2013 Lahore) and Mazhar Saeed and another versus A.D.J. and 11 others (2011 YLR 3089 Lahore).

4.Another aspect of the matter is that not only the learned trial court has closed the right of the petitioner to cross-examine the respondent’s witnesses without noticing that they were not available in the court, rather the court has rewind the clock by mentioning that evidence of PW-1 and PW-2 had been recorded on 17.11.2025 and used their presence in the court on the said date to close right of the petitioner to cross-examine the said witnesses by treating the attendance of witnesses on 17.11.2025 as attendance on 22.01.2026, despite their non- availability on the said date. This course of action was not permissible under the law as the stage for determining the availability of witnesses for cross- examination was the position pertaining on 22.01.2026 and not on 17.11.2025.

5.The absence of the petitioner has been used against him to close his right of cross-examining the respondent’s witnesses, while ignoring the fact that witnesses of the respondent, who were to be cross-examined, were also not available. This shows

C.R.No. 173 of 2026

that on 22.01.2026, the petitioner alone was not at fault rather both parties were at fault. When both the parties are at fault then one party could not be made to suffer due to the fault of the other and penal order cannot be passed against the said party on account of fault of the other, besides the party at fault (who did not produce witnesses) cannot take benefit of its own wrong, hence, cross-examination could not be closed as condition precedent for the same that witnesses have to be available in the court for said purpose, was not fulfilled.

6.It is apparent from the record that the order passed by the learned trial court not only suffers from misreading and non-reading of record rather the same has been passed in haste and hasty decisions are not appreciated by law. In cases titled Ali Muhammad versus Mst. Murad Bibi (1995 SCMR 773) and Ally Brothers and Company (Pak) Ltd. versus Federation of Pakistan through Cabinet Secretary and 3 others (2009 YLR 982 Lahore), where the right of parties to cross-examine the witnesses of other parties were closed in haste, the matters have been remanded to the trial court for decision afresh by providing opportunity to said parties. The observations in case of Ally Brothers (supra) recorded by this Court, while setting aside the impugned order of closure of cross- examination of the petitioner in the said case, is reproduced below:

‘2. The learned counsel for the petitioner contends that the impugned order has been passed in haste and the petitioner has been knocked out on hyper-technical ground; it was statutory right of the petitioner under Article 133 of Qanun-e-Shahadat Order to effectively cross-examine the witnesses appearing against the petitioner and such

C.R.No. 173 of 2026

right had been circumvented and curtailed; in this regard, reliance has been placed upon Kashif Ali Khan and another v. Sher Jan Muhammad and another (2006 MLD 1447) and Lyallpur Cotton Mills v. Authority under Payment of Wages Act, Faisalabad (1985) PLC 563). The learned Deputy Attorney General has defended the impugned order.

3.I have heard the learned counsel for the parties and find that the impugned order has been passed in undue haste, which obviously has violated and curtailed the petitioner’s most valuable right of cross-examination, therefore, such order cannot sustain. Resultantly, by allowing this petition, the impugned order is set aside; the document, which was required to be produced by the said witness, would be first taken in evidence and then the petitioner shall be permitted to cross-examine the said witness.’

7.For what has been stated above, the impugned order dated 22.01.2026 appears to have been passed in haste and suffers from jurisdictional defect of misreading and non-reading of the record and improper exercise of jurisdiction vested in the learned Addl. District Judge, besides resulting in prejudice to the valuable right of petitioner to cross- examine witnesses of respondent provided under Article 133 of Qanun-e-Shahdat Order, 1984, and amounts to miscarriage of justice, hence, the same is not sustainable and is set-aside by declaring the same to have been passed without any lawful authority and of no legal effect and resultantly the instant Civil Revision is allowed and the right of the present petitioner to cross-examine the respondent’s witnesses is restored for which purpose the petitioner shall be provided another opportunity by the trial court.

8.As this order has been passed in the absence of the respondent by dispensing with the

C.R.No. 173 of 2026

notice to him for the reason that only short legal and jurisdictional questions were involved and summoning the respondent would not only delay the matter but also cause un-necessary expenses to him, if the respondent is not satisfied with the afore- referred arrangement, he may file an application for re-hearing of the matter on its own merits in accordance with law.

(Muzamil Akhtar Shabir) Judge Zeeshan Khan

Approved for reporting.

Judge