Waqas Qadir VS Badra Khatoon etc

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

(JUDICIAL DEPARTMENT)

Civil Revision No. 102 of 2025

Waqas Qadir Vs.

Mst. Badra Khatoon and others

Petitioner by : Mr. Saad Ahmad Rajpoot, Advocate.

Respondents by : Syed Arslan Sabir Bukhari, Advocate [For respondent No. 4, 6 & 7] M/s. Sohail Ikram and Husnain Sohail, Advocates [For respondent No. 5] Barrister Bilal Naseer and Mr. Zia Nasir, Advocates [For respondent No. 8] Nemo for Respondents No. 1 to 3 (Ex-Parte).

Date of Hearing : 10-9-2026.

SHAHRUKH ARJUMAND, J.-

1.The petitioner [Waqas Qadir] has assailed Order dated 15.2.2025 (“Impugned Order”) passed by the learned Additional District Judge, West-Islamabad (“Trial Court”) whereby his application seeking permission to produce additional evidence of four (04) private witnesses, namely Umar Zaman, Asif Khan, Fazal Subhan and Rabia Batool was dismissed.

2.Brief facts of the case, as set out in the memorandum of petition, are that petitioner instituted suits for specific performance of agreements concerning House No.9, Street No.37, Sector F-8/1 Islamabad (“Suit

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Property”), while respondent No.1 filed a suit for cancellation of documents relating to the same property. The suits were consolidated vide order dated 18.01.2023. Although the petitioner had already filed his list of witnesses, the names of four private witnesses, namely Umar Zaman, Asif Khan, Fazal Subhan and Rabia Batool, were inadvertently omitted therefrom. During pendency of the suits, certain documents were referred to the Federal Investigation Agency for forensic examination and the FIA submitted its reports dated 10.10.2023/18.10.2023. The petitioner thereafter sought permission to produce the said private witnesses and the FIA forensic report along with the concerned expert. However, his application was dismissed by the learned Trial Court vide Impugned Order dated 15.02.2025, hence instant revision petition.

3.Learned counsel for the petitioner contended that learned Trial Court erred in dismissing the application for production additional evidence of four private witnesses and the FIA forensic report. He submitted that proposed witnesses were private witnesses whom the petitioner intended to produce voluntarily, without seeking summons through the Court and their inadvertent omission from the list of witnesses could not constitute an absolute bar to their examination. In support of his contention, reliance was placed upon the judgment of the Hon’ble Supreme Court in “Amjad Khan v. Muhammad Irshad” (2020 SCMR 2155). He further submitted that FIA forensic report was not available at the time of institution of suits or framing of issues and was subsequently prepared during proceedings before Federal Ombudsperson; hence, the same constituted subsequent material relevant to controversy regarding execution/authenticity of agreements and other documents. Learned counsel argued that learned Trial Court failed to properly appreciate the relevancy of proposed evidence and dismissed application without sufficient reasons, causing prejudice to the

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petitioner. The learned counsel relied upon “Kohinoor Tobacco Company (Pvt,) Ltd. V. S.M. Idrees Allawala” (2013 CLC 1789). He prayed that the Impugned Order dated 15.02.2025 be set aside.

4.On the other hand, learned counsels appearing on behalf of respondents No.4 to 8 controverted the assertions made by learned counsel for petitioner and submitted that Impugned Order is well-reasoned and in accordance with law. They, therefore, prayed for dismissal of instant petition, whereas none appeared on behalf of respondents No.1 to 3 despite the fact that learned counsel representing respondent No.1 to 3 was present on the previous date of hearing. Consequently, respondents No.1 to 3 are proceeded against ex parte.

5.I have heard the learned counsels for the parties and have also perused the record.

6.The contents of instant civil revision make it evident that petitioner has challenged the order dated 15.02.2025 passed by learned Trial Court, whereby his application for additional evidence to produce private witnesses was dismissed.

7.Impugned Order dated 15.02.2025 as well as contents of instant petition also reflect that previously, petitioner has filed an application under Section 151 read with Order VII Rule 18 CPC, 1908 for leave to place additional documents, which was dismissed by Trial Court on 22.03.2024. The petitioner has not assailed said order; rather, he is aggrieved of Impugned Order dated 15.02.2025, according to which his application for additional evidence to produce private witnesses was dismissed. Hence, the only question requiring determination before this Court is as to whether petitioner is entitled to produce private witnesses in his evidence.

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8.The procedure and requirements for production of witnesses have been provided under Order XVI Rule 1 CPC, 1908 which mandates that in order to produce witnesses, each party is required to submit a certificate of readiness and a list of witnesses whom they propose to call or produce, either to give evidence or to produce documents. In accordance with the previous jurisprudence settled by august Supreme Court of Pakistan, submission of list of witnesses containing names of all witnesses either to be called or to be produced was declared to be a mandatory requirement of law, in absence of which any such witness was not allowed to give evidence or to produce any document. It was held in case of ‘Muhammad Anwar and others v Mst. Ilyas Begum and others’ that:

“The clear language of Rule 1(1), undisputably stipulates that the parties to a lis are required to furnish the list of witnesses, whom they propose to call either to give evidence or to produce the documents, within seven days of the framing of issues; meaning thereby that the process and the authority of the Court in terms of Order XVI(1), to call and summon the witness by a party, has been made subject to, rather conditional to the list of witnesses which a party is mandated to file in terms thereof; in other words, the power and the machinery of the Court for summoning/calling of the witnesses through the process of Court and law, as is envisaged by certain subsequent relevant rules of Order XVI, C.P.C., can only be invoked if such a list has been provided and not otherwise. From sub-Rule (2), the afore- stated intention of the legislature is fortified and augmented, as a specific prohibition has been placed, preventing a party to call the witnesses and, as per the High Court Amendment-Lahore dated 2-10-2001, even to produce witnesses other than those whose names are mentioned in the list required to be filed under sub-rule (1). Undoubtedly, this is a mandatory provision of law as it entails serious consequences of precluding a party from calling, through

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aid of law (Court), or even to produce the witnesses if their names do not appear in the requisite list.1”

9.Thereafter, the same issue came before the august Court in case of Haji Zarwar Khan though L.Rs v Haji Rehman Bangash and others, wherein the same principle laid down in the case of Muhammad Anwar Ali (supra) was reiterated in the following terms:-

“The above quoted rule deals with the mode and manner of recording evidence. It provides that the evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge. It by no stretch of imagination provides for examination of witnesses who are not mentioned in the list of witnesses. When seen in this context the rule does not advance the case sought to be canvassed at the bar by the learned ASC for the petitioner nor does it appear to be unmeaning or redundant.2”

10.Thereafter, in the case of Amjad Khan vs. Muhammad Irshad, the august Court again considered the matter of mandatory requirements for submission of list of witnesses and it was held by the august Court that there is a difference between calling a witness and his or her voluntary production, either to give evidence or to produce documents and the mandatory requirement of Order XVI Rule 1 CPC is applicable only with regard to witnesses sought to be summoned by Court and same was not applicable on witnesses that parties sought to produce voluntarily without invoking the authority of Court to summon them. It was held by the august Court that:-

“9. As is evident, none of these provisions mention the category of witnesses that the litigants produce on Muhammad Anwar and others v Mst. Ilyas Begum and others, P L D 2013 Supreme Court 255.

Haji Zarwar Khan though L.Rs v Haji Rehman Bangash and others, 2016 S C M R 1976.

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their own motion. To the contrary, these provisions repeatedly refer to summoning of witnesses and the related matters, meaning thereby that the scope of this Order does not go beyond summoning and attendance of witnesses through court. In this context, it stands to reason that the aforesaid embargo is also limited to the witnesses who are to be summoned through the court, and does not extend to the witnesses that the parties seek to produce voluntarily without invoking the summoning powers of the court.”

11.However, in the case of Amjad Khan (supra), the august Court went a step further to differentiate between the testimony of witnesses whose names were included in the list of witnesses and those whose names were not so included. The august Court categorically held that witnesses whose names were not included in list of witnesses were though allowed to be produced voluntarily before the Court and to give evidence, but their testimony shall remain confined to the extent of pleadings of parties and documents annexed and they were not allowed to give evidence or produce any document beyond that scope.

12.On the other hand, witnesses summoned through the process of Court after inclusion of their names in the list of witnesses are not bound by the pleadings or case set up by parties and they are at liberty to introduce new elements in the case which may shock and surprise the opposite party, unlike witnesses whose names were not so included in list of witnesses. August Court in this regard held that:- “10. This interpretation of the embargo also makes sense when considered in relation to its purpose. As discussed earlier, the embargo has been placed to protect litigating parties from a surprise at a belated stage in the proceeding. Voluntary production of witnesses by the parties however does not jeopardize

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this purpose, because such witnesses either support the claims made in the pleadings and/or the documents mentioned in the list annexed to the plaint under Order VII, Rule 14, C.P.C. or produced in court at the first hearing of the suit, i.e. after the framing of issues, under Order XIII, Rule 1, C.P.C.. Furthermore, the parties are not allowed to produce any document that has not been brought to the notice of the court in terms of these provisions, except with the permission of the court under Order XIII, Rule 2, C.P.C. In this regard, reference can be made to Sher Baz Khan v. The State (PLD 2003 SC 849) and Javed Rafat Khan v. Messrs. Shabbir Tiles and Ceramics Ltd. (PLD 2005 Karachi 1). This means that such witnesses can never depose about anything that the opposing party does not already know, either through the pleadings or through the annexed and submitted documents, foreclosing any chance of taking the latter by surprise. On the other hand, the witnesses which are summoned through the court to give evidence or to produce documents are not bound by the pleadings or the case set up by the parties. They can introduce new elements in the case which may shock the opposing party and adversely impact its case without giving sufficient notice. It is to guard against such surprises by summoned witnesses that the embargo of Order XVI, Rule 1, C.P.C. was introduced, not to prevent the parties from producing witnesses present in the court on the day the evidence of the parties is being recorded whose testimony may be material for a just resolution of the controversy.”

13.In view of the above said jurisprudence set up by the august Supreme Court of Pakistan, a few principles can be deduced:

i. Submission of list of witnesses under Order XVI Rule 1 CPC is a mandatory requirement of law in respect of those witnesses who are sought to be summoned through the process of Court.

ii. The parties are at liberty to produce any witness voluntarily, even if his or her name is not included in the list of witnesses, provided that his/her testimony remains confined to the extent of pleadings of parties as

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well as documents annexed and cannot go beyond that scope.

iii. In the normal course of proceedings, private witnesses whose names were included in the list of witnesses can give evidence even beyond pleadings; however, in accordance with settled law in this regard, their evidence given as such cannot be considered valid evidence and can be ignored by the Court, unlike those private witnesses whose names were not included in the list of witnesses as in that case they cannot be allowed to give evidence or produce any document beyond pleadings and annexed documents.

14.Testing the above mentioned principles on the case in hand, it can safely be held that in accordance with settle law, though petitioner is entitled to produce his private witnesses voluntarily before the learned Trial Court, however, their testimony shall remain confined to the extent of pleadings and annexed documents and they cannot introduce any new element or fact beyond that scope.

15.In view of the foregoing discussion, the instant revision petition is partly allowed. The Impugned Order dated 15.02.2025 is modified to the extent that petitioner shall be at liberty to voluntarily produce private witnesses in question before the learned Trial Court, subject to principles discussed hereinabove.

(SHAHRUKH ARJUMAND)

JUDGE

Approved for reporting.

Farid ur Rehman