13/08/2026
2023 M L D 1875
Non-adverse party---Cross-examination, right of---Dispute was with regard to deleting cross-examination conducted by petitioner/defendant on a witness produced by respondent/co-defendant on the plea that both were not adverse parties---Validity---Only such party, which had obvious conflict of interest, could enjoy right of cross-examining witness of opponent parties---In the present case, interest of petitioner/defendant and that of respondent/co-defendant was the same and there was no conflict of interest between them, thus an opportunity of cross-examination to witnesses of respondent/co-defendant having no adverse interest to each other could not be given in order to prevent abuse of process of law as well as to prevent filling up lacunas occurring in the statement of witness through the sword of cross-examination---Lower Appellate Court did not commit any illegality in exercise of revisional jurisdiction---
JUDGMENT
.---Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has challenged the validity of judgment dated 12.11.2022 passed by the learned Additional District Judge, Lahore who accepted the revision petition of respondents Nos.1 and 2/plaintiffs, set aside the order dated 07.04.2022 passed by the learned Civil Judge, Lahore and struck off cross-examination conducted upon DW3 to DW5 by the learned counsel for the petitioner as well as respondent No. 4.
2. Brief facts of the case are that Arfeen Ejaz etc. respondents Nos.1 and 2/plaintiffs filed a suit for declaration with permanent injunction against the petitioner and respondents Nos.3 to 6/defendants in respect of plot No.12-C, Gulshan Ravi Scheme, Lahore with the claim that the above said plot was owned by three brothers namely, Ijaz Ali (father of the plaintiffs), Mumtaz Ali/defendant No.1 and Nawazish Ali (died issueless) and a suit for declaration was instituted for declaration of legal heirs. The said suit was decreed by declaring Razia a Sultana, Safia Sultana, Bushra Parveen and Shahnaz Parveen as well as the father of the plaintiffs and respondent No.3/defendant No.1 as legal heirs of the deceased and accordingly the property was devolved upon all the legal heirs as per their respective shares; that Mst. Razia Sultana, Safia Sultana, Bushra Perveen and Shahnaz Perveen (sisters of the deceased) transferred their shares in favour of Ijaz Ali, father of the plaintiffs and Mumtaz Ali/defendant No.1 through registered sale deed No.6616 dated 11.08.1998, thus the above said Ijaz Ali and Mumtaz Ali became exclusive owners of the suit property. In the year 2003, Mumtaz Ali/respondent No. 3 sold his share in favour of Ijaz Ali (father of respondents Nos.1 and 2) and accordingly transfer letter dated 09.05.2003 was issued by the LDA in favour of Ijaz Ali. In 2005, said Ijaz Ali transferred the suit property/plot in question in favour of (respondents Nos. 1 and 2) and this transfer was incorporated the record of LDA (respondents Nos. 5 and 6/defendants Nos. 4 and 5) through transfer letter dated 28.07.2005 and respondents Nos. 1 and 2 became owners of the suit property.
That Mumtaz Ali, the father of respondent No.3/defendant No.1 submitted his undertaking that he had no concern with the suit property as he has transferred his share in favour of Ijaz Ali (father of respondents Nos. 1 and 2).
That Imtiaz Ali, respondent No.3/defendant No.1 allegedly executed general power of attorney dated 20.02.2007 in favour of Muhammad Ramzan who by using the said power of attorney transferred a portion of the suit property in favour of his son, Muhammad Umar Ramzan through registered sale deed No.5037 dated 27.09.2007. Respondents Nos. 1 and 2/plaintiffs challenged the said general power of attorney as well as registered sale deed in favour of the petitioner through civil suit which was contested by the petitioner through filing a written statement. As per respective divergent pleadings of the contesting parties, the learned trial court framed issues. The plaintiff adduced their evidence and similarly the petitioner/defendant No.2 had also got recorded statements of DW-2 to DW-5; that the learned counsel for the petitioner/defendant started cross-examination of the witnesses (DWs) of the co-defendants. Plaintiff/respondents Nos. 1 and 2 filed objection that a co-defendant having shared common interest is debarred to conduct cross-examination on the witness of other co-defendants as it is amounted to filling up the lacunas. The said objection petition was contested by the petitioner/defendant No.3 and the learned trial court vide order dated 07.04.2022 rejected the said objection petition. Respondents Nos.1 and 2 challenged the said order through revision petition which was accepted by the learned revisional court who vide judgment dated 12.11.2022, set aside the above said order of the learned trial court and struck off the cross-examination conducted on DWs by the petitioner/defendant No.3 from the record. Hence, this writ petition.
3. I have heard the arguments advanced by the learned counsel for the parties at full length and gone through the entire record with their assistance.
4. Admittedly the petitioner is son of Muhammad Ramzan/ respondent No.4 who (defendant No.4) on the basis of alleged general power of attorney executed by Mumtaz Ali, respondent No.3/defendant No.1 transferred the portion of the suit property in favour of his real son/petitioner. The stance of respondents Nos. 1 and 2/plaintiff is that petitioner and respondent No.4 (defendant) have common interest and are not adverse to each other, as such the witnesses (DW2 to DW-4) were produced by respondent No.4 to prove his version which is amounted to prove the stance of petitioner/defendant No.3. Though different counsel filed written statements which are same ditto copies of each other. The main point before this Court is whether the non-adverse parties having common/joint interest may cross-examine the witness of each other or otherwise. Article 132 of Qanun-e-Shahadat Order 1984 relates to examination-in-chief etc. of a witness of a party. The initial statement of a witness with regard to the matter in issue is called his examination-in-chief and the examination of a witness by the adverse party is called his cross-examination. As per Sub-Article (1) of Article 132 of the Order ibid, witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examine him, then (if the party calling him so desires) re-examines the witness. For ready reference, Articles 132 and 133 of Order 1984 are reproduced as under:-
"132. Examination-in-chief, etc.---(1) The examination of a witness by the party who calls him shall be called his examination-in-chief.
(2) The examination of a witness by the adverse party shall be called his cross-examination.
(3) The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his reexamination.
(emphasis supplied)
133. Order of examinations.---(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 word "Adverse party" has garnered a material significance and as this word is not defined in the very ordinance ibid, thus its plain ordinary meaning is to be imported/borrowed from Dictionary. In Black's Law Dictionary "Adverse party" is defined as under:-
"Adverse party. A party whose interests are opposed to the interests of another party to the action."
Thus, as per the above meaning of word, only such a party which has obvious conflict of the interest can enjoy the right of cross-examining the witness of the opponent parties. As per available record, pleading, the interest of the petitioner and that of respondent No.4 (defendants Nos.2 and 3) being father and son is quite common/one and the same. Respondent No.4 being father transferred the property in favour of his son on the basis of alleged general power of attorney and the witnesses of the father/defendant No.2 took same stance as taken by the petitioner/defendant No.3 as such the petitioner's case does not fall adverse to interest of his father, thus the petitioner cannot be allowed to cross-examine the witnesses of his father. Reliance is placed on a case titled as Barkat Ali v. Additional District Judge Dadyal and 4 others (2022 YLR 868) wherein it is held as under:-
"Article 132(2) of Qanun-e-Shahadat Order, 1984 postulates that examination of a witness by the adverse party is cross-examination. Article 133(1) of Qanun-e-Shahadat refers to cross-examination if the adverse party so desire after the witness is first examined in chief. These two provisions of Qanun-eShahadat Order make it clear that a party has a right of cross-examination if feels adversely affected. As a general rule, evidence is not legally admissible against a party who at the time it was given, had no opportunity to cross-examine the witness who recorded such evidence. It is now well settled principle of law that no evidence should be read against one who was not given opportunity of testing it by cross-examination. On the basis of same principle, it would be unjust, unfair and unsafe not to allow a co-defendant to cross-examine a witness called by the other co-defendant whose case was adverse to him, produce evidence which incriminates other defendants, thus later have a right to cross-examine those witnesses. If there is no conflict of interest, then such an opportunity needs not to be given. Therefore, the condition precedent for giving an opportunity to a co-defendant to cross-examine the other co-defendant is, that there should exist conflict of interest between them either from the pleadings or during the course of evidence. Once it is demonstrated that their interests are not common or there is a conflict of interest and evidence has been adduced affecting the interest of co-defendant then the Court cannot rely on that evidence without giving the opportunity of cross-examination to the party affected by it. The person against whom the evidence is given should have opportunity to cross-examine the said witness, so that ultimately, truth may emerge, on the basis of which the Court can decide the matter....."
(emphasis supplied)
Reliance is also placed on the case cited as Muhammad Imran Khan and 4 others v. Haji Muhammad Akhtar and others (PLD 2021 Sindh 510) and Sadhu Singh v. Sant Narain Singh Sewadar and others (AIR 1978 Punjab and Haryana 319).
5. As the interest of the petitioner and that of respondent No.4 is the same and there is no conflict of interest between them, thus an opportunity of cross-examination to the witnesses of co-defendant having no adverse interest to each other could not be given in order to prevent the abuse of process of law as well as to prevent filling up the lacunas occurred in the statement of the witness through the sword of cross-examination. Resultantly the learned revisional court has rightly accepted the revision petition of respondents Nos.1 and 2/plaintiffs and has committed no illegality.
6. It evinces from the record that the instant Constitutional petition arises from the judgment passed by the learned Revisional Court and ordinarily, this Court avoids to interfere with such Revisional orders in its constitutional jurisdiction unless the same is found to be patently illegal and without jurisdiction. Reliance is placed on a case titled as Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others (1991 SCMR 970) held as under:-
"The learned High Court observed that a revisional order arising out of civil litigation could not be challenged in the Writ Petition and relied upon Ghulam Hussain v. Malik Shahbaz Khan 1985 SCMR 1925; Muhammad Bakhsh v. Ghulam Hussain 1989 SCMR. 443 and Muhammad Zahoor v. Lal Muhammad 1988 SCMR 322."
7. Learned counsel for the petitioner has neither pointed out any illegality, material irregularity while passing the impugned judgment nor identified any jurisdictional defect calling for interference by this Court.
8. In view of above, this writ petition is dismissed being devoid of any merits.
