Re-Examination in case of further evidence

 PLJ 2018 SC 42

[Appellate Jurisdiction]

Present: Mushir Alam, Dost Muhammad Khan & Sajjad Ali Shah, JJ.

CHAIRMAN NAB--Appellant

versus

MUHAMMAD USMAN and others--Respondents

Civil Appeal No. 1085 of 2017, decided on 21.9.2017.

(On appeal from the order dated 18.4.2017 passed by
the Peshawar High Court, Peshawar in
W.P. No. 1230-P/2017)

Criminal Procedure Code, 1898 (V of 1898)--

----S. 540--Scope & Power--It empowers Court to examine any witness, present in Court or to produce any document in his possession or to summon and re-examine any person/witness already examined and it shall summon any such witness, if it is of view that its evidence or further evidence is necessarily required to each at a just conclusion by securing end justice.                                                           [P. 45] A

Examination in Chief Cross Examination & Re-examination--

----Qanun-e-Shahadat Order, 1984--S. 131, 132 & 133--Define--Prosecution witnesses or any party calling and examining witnesses is called examination in chief, while examination of same witness by opposite party is called, Cross examination, subsequent examination of same witnesses by party calling it is called Re-examination.         [P. 45] B

Administration of Justice--

----Witnesses--Duty of Court--Validity--It is primary duty of Court to safeguard interest of witnesses in a reasonable manner and they are to be protected from undue harassment. [P. 46] C

Criminal Procedure Code, 1898 (V of 1898)--

----S. 540--Duty and role of Court--Validity--It is inquisitorial, where it endeavors to discover truth, suppressed by both or one party to case to incapacitate Court to reach at just conclusion--Role of judge does not undergo change because in exercising inquisitorial powers, law has to impose obligation on it to discover truth and to secure end of justice.    [P. 46] D

Criminal Procedure Code, 1898 (V of 1898)--

----S. 540--Scope--Examination of witness--Status--Validity--Witnesses are examined as Court witness and not for prosecution or defence, therefore, none of parties to a case can claim such a right. [P. 47] E

Administration of Justice--

----Discretion--Interference by Apex Court--Principle--It is bedrock principle of law that discretion once exercised by Court vested in it by law, shall in no manner be disturbed or set aside by Courts superior in rank--This principle shall apply more vigorously in constitutional jurisdiction of High Court under Article 199, which shall be exercised sparingly and considerable restraints should be exercised in this regard. [Pp. 47 & 48] F

Administration of Justice--

----Principle--Law is written on sleeves of judges and it is primary duty of a judge to apply correct law to a case before it and even party is not bound to engage counsel for telling Court how a particular law is to be applied and how jurisdiction is to be exercised--Appeal allowed.                   [P. 48] G

Mr. Arshad Qayyum, Special Prosecutor for Appellant.

Mr. Shumail Butt, ASC for Respondents No. 1 & 2.

Date of hearing: 21.9.2017

Judgment

Dost Muhammad Khan, J.--This appeal with the leave of the Court is against the judgment of the Peshawar High Court dated 18.4.2017. The Accountability Court, Peshawar vide order dated 9.3.2017 declined request of the respondents for summoning 33 prosecution witnesses, who were already examined and cross-examined, however, it was set aside through the impugned judgment.

We have heard the learned ASC for the appellant and the learned ASC for the respondents-accused and have gone through the relevant provisions of law and also the case-laws cited at the bar.

2.  The respondents were charged for collecting huge
money from several persons, wanted to perform “Hajj”, however,
they allegedly misappropriated the same and did not perform their promise.

3.  Initially, cognizance of the case was taken by the FIA, Peshawar but then it was transferred to the NAB. The latter after conducting inquiry, converted it into investigation and at the conclusion thereof, Reference No. 2 was filed in the Accountability Court, Peshawar. At the conclusion of the prosecution evidence, the respondents accused submitted a long list of defence witnesses including 33 witnesses of the prosecution, they wanted to examine as defence witnesses, albeit these witnesses were earlier examined by the Prosecution and were cross-examined, however, no reason much less plausible was shown for such a venture.

4.  The learned Division Bench of the High Court in paras 6 & 7 of the impugned judgment has held as under:

“Under the provisions of Sections 265-F and 540, Cr.P.C. the trial Court has wide powers and the respondent accused/defence has a right to produce any witness already examined by the Prosecution and this right cannot be denied to the accused-respondent.”

To know the true meaning and import of the two provisions of law, same are reproduced as follows: -

“S. 265-F. Evidence for prosecution:

(1)      …………………………………(not relevant)

(2)      …………………………………(not relevant)

(3)      …………………………………(not relevant)

(4)      …………………………………(not relevant)

(5)      …………………………………(not relevant)

(6)      If the accused, or any one of several accused, says that he means to adduce evidence, the Court shall call on the accused to enter on his defence and produce his evidence;

(7)      If the accused or any one or several accused, after entering on his defence, applies to the Court to issue any process for compelling the attendance of any witness for examination or the production of any document or other thing, the Court shall issue such process unless it considers that the application is made for the purpose of vexation or delay or defeating the ends of justice such ground shall be recorded by the Court in writing.”

“S. 540. Power to summon material witness or examine persons present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.”

6.  Under the former provision of, Cr.P.C., it is the Prosecution to produce and examine its witnesses, who are necessary to place before the Court the true version of a case, while the accused/defence has a right to cross-examine them, which opportunity on all the 33 witnesses was fully availed by the accused-respondents.

7.  The latter provision i.e. Section 540, Cr.P.C. empowers the Court to examine any witness, present in Court or to produce any document in his possession or to summon and re-examine any person/witness already examined and it shall summon and examine any such witness, if it is of the view that its evidence or further evidence is necessarily required to reach at a just conclusion by securing the ends of justice.

8.  The production and examination of witnesses has also been explained by various provisions contained in Chapter 10 of the Qanun-e-Shahadat Order, 1984. This provision in unequivocal terms prescribes the mode and manner of examination of witnesses. The prosecution witnesses or any party calling and examining the witnesses is called, ‘examination-in-chief’ while examination of the same witnesses by the opposite party is called, ‘cross-examination’. Subsequent examination of the same witnesses by the party calling it, is called ‘re-examination’. The latter exercise is conducted with the permission of the Court whenever any ambiguity or vacuum is created in the testimony of witness/witnesses during the course of cross-examination to explain the same and not for dishonest improvement.

9.  The Courts are required to guard and protect the witnesses against undue harassment and undesirable cross-examination, not relevant to the fact in issue but directed against the witnesses by way of bush-beating, putting them to unnecessary strain and stress so that something is brought about from their mouth after they are exhausted through such undue process.

10.  The famous Jurist on the law of evidence, “Wigmore” has placed the status of the witnesses on high pedestal and has described them ‘engines and machines/essential tools’, without whose assistance and evidence the Courts would be unable to do justice or to reach at a correct conclusion therefore, he suggests that it is the primary duty of the Court to safeguard the interest of the witnesses in a reasonable manner and they are to be protected from undue harassment.

11.  The 3rd category of witnesses is called ‘Court witnesses’, who are examined or re-examined by the Court, when at trial, the Court is of the view that their evidence is essential for the just and fair decision of the case in discovering the truth. These powers have been conferred on the Court with the only object that justice is not slipped out of the hands of the Court nor it get out of its domain because doing justice in each case is the primary obligation of every Court and not the party in an adversarial system of justice. The role of the Court under the provision of S. 540, Cr.P.C. is inquisitorial where it endeavours to discover the truth, suppressed by both or one party to the case to incapacitate the Court to reach at a just conclusion. The role of the Judge does not undergo change because in exercising inquisitorial powers, the law has imposed obligation on it to discover the truth and to secure the ends of justice.

12.  From the entire scheme of above provisions of, Cr.P.C. and of the provisions of the Qanun-e-Shahadat Order, 1984, it becomes clearer than crystal that the two categories of witnesses i.e. the prosecution witnesses and the defence witnesses are distinctly placed pole apart and both cannot and shall not be intermingled.

13.  The words used, Vexation, causing delay in the trial or defeating the ends of justice are of vital connotation and discretion is vested in the Trial Court to refuse the summoning or examining any witness by the Defence if the purpose is to defeat such ends.

14.  There may be very rare and exceptional cases, where, the prosecution has dropped any material witness whose evidence, if given, may have a direct bearing on the end result of the case, in that event, the Court is blessed with unfettered powers to summon and examine such witness only for the purpose of discovery of truth, for the purpose of doing complete justice however, such powers are not to be exercised at random and without application of proper judicial mind with reasonable depth to the facts of each case. Unmistakenly, in view of the provision of S. 540, Cr.P.C. the witnesses are examined as ‘Court witnesss’ and not for prosecution or defence, therefore, none of the parties to a case can claim such a right. These powers shall only be exercised to put justice into correct channels.

15.  The discretion so vested in the Trial Court ordinarily cannot be questioned and that too in extraordinary constitutional jurisdiction unless it is shown and established that exercise of such powers by the Trial Court or by not exercising the same, has resulted into a grave miscarriage of justice, therefore, calling the witness of the other party as its own witness, even in criminal trials, already examined, is not acknowledged by the law on the subject, therefore, it is neither desirable nor such a practice can be approved. In exceptional cases, where material witness has been dropped by the prosecution in the circumstances discussed above, the Court may exercise powers with due care and caution. However, in that case too, the prosecution witness/witnesses cannot be examined as defence witnesses but Court witness/witnesses and for that, a written request is made to the Court showing cogent and convincing reasons for calling and examining any witness of the prosecution, not examined or has already been examined to be re-examined as Court witness.

16.  If the witnesses of the prosecution already examined in bulk like in this case, are called as defence witnesses u/S. 265-F, Cr.P.C. this would defeat the ends of justice besides corrupting the system of justice through intrigues. In case they make improvement in favour of the defence, making radical departure from their earlier statements, they would compromise their integrity and would also expose themselves to criminal prosecution on the charge of perjury therefore, such a course shall be avoided in all circumstances to streamline the process and to ensure that trials are not delayed and course of justice is not thwarted by such tactics and tricks.

17.  It is the bedrock principle of law that discretion once exercised by the Court vested in it by law, shall in no manner be disturbed or set aside by the Courts superior in rank. This principle shall apply more vigorously in constitutional jurisdiction of the High Court under Article 199 thereof, which shall be exercised sparingly and considerable restraints should be exercised in this regard.

18.  As held time and again that the powers of judicial review vested in High Court under Article 199 of the Constitution is no doubt a great weapon in the Judge’s hands however, the same shall not be exercised in a case where discretion is exercised by the subordinate Court/Tribunal in a fair and just manner without violating or disregarding statutory provision of law, likely to occasion the failure of justice. Ordinarily such extraordinary jurisdiction shall not be exercised at random and in routine manner. The following case law is reproduced for the guidance of the learned Judges of the High Court for future course of action:--

(i)       Brig.(Rtd.) Imtiaz Ahmed v. Government of Pakistan, through Secretary, Interior Division, Islamabad (1994 SCMR 2142)

(ii)      Shahnaz Begum v. The Hon’ble Judges of the High Court of Sindh and Baluchistan (PLD 1971 SC 677)

(iii)     Malik Shauktat Ali Dogar v. Ghulam Qasim Khan Khakwani (PLD 1994 SC 281)

19.  In our considered view, the learned Division Bench of the Peshawar High Court through the impugned judgment has certainly overstepped its jurisdiction vested in it under Article 199, probably due to lack of proper assistance at the bar, however, one cannot ignore the fundamental principle relating to administration of justice that law
is written on the sleeves of the Judges and it is the primary duty of
a Judge to apply the correct law to a case before it and even the
party is not bound to engage a counsel for telling the Court how a particular law is to be applied and how the jurisdiction is to be exercised thus, the impugned judgment being not sustainable in law, is set at naught.

According, this appeal is allowed and the impugned judgment of the Peshawar High Court dated 18.4.2017 is set aside while that of the Accountability Court is restored.

(W.I.B.)           Appeal allowed

Mistake in Evidence can be ractified

 PLJ 2013 Lahore 633

Present: Abdus Sattar Asghar, J.

KAMEER and another--Appellants

versus

ABDUL MAJEED--Respondent

R.S.A. No. 145 of 2004, heard on 25.2.2013.

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Arts. 70 & 71--Oral evidence--Onus probandi--There is no cavil to proposition that in terms of Art. 70 of Q.S.O. all facts except contents of documents might be proved by oral evidence--Art. 71 of Order, 1984 contemplates that oral evidence must, in all cases whatever be directed.        [P. 635] A

Evidence--

----Agreement to sell--It is well established principle of law of evidence that a person can tell a lie but document cannot. [P. 636] B

Civil Procedure Code, 1908 (V of 1908)--

----O. VI, R. 17--Oral agreement to sell--Divergent pleading--Application for amendment was allowed--Proposed amendment was not likely to change nature of suit--After demise of predecessor, appellant resiled and refused perform agreement--Documentary account--Respondent was under heavy burden to prove alleged factum of oral agreement to sell between parties which he could not establish through reliable ocular or documentary.     [Pp. 636 & 637] C

Error of Law--

----Court commits an error if it acts contrary to law--Validity--If a Court acts contrary to law, it acts without jurisdiction and its order to that extent is nullity--It is bounden duty of Court to decide controversy between the parties on basis of evidence on record which is legally admissible--A decision based on mistaken assumption and misreading or non-reading of evidence falls within ambit of an error of law.       [P. 637] D

Mr. Shahid Qayyum Chaudhry, Advocate for Appellants.

Mr. Inayatullah Chaudhry, Advocate for Respondent.

Date of hearing: 25.2.2013.

Judgment

This Regular Second Appeal is directed against the judgment and decree dated 14.11.2001 passed by learned Civil Judge Depalpur whereby respondent's suit for specific performance was decreed in his favour against the appellants. It also impugns the judgment and decree dated 23.6.2004 passed by the learned Additional District Judge Depalpur whereby appellants' appeal against the judgment and decree of the learned Civil Judge was dismissed.

2.  Brief facts leading to this appeal are that on 31.10.1994 Abdul Majeed respondent lodged a suit for specific performance against the appellants alleging that the appellants and their father namely Hamza jointly owned an area measuring 44 Kanals and 12 Marlas as per record of rights for the year 1992-93 situated in Mauza Ajja Bhutta Tehsil Depalpur; that about 2¬ years back appellants' predecessor namely Hamza orally agreed to sell the suit land in favour of the respondent in consideration of Rs. 3,00,000/-; that the respondent is in possession of the suit land since long however after the agreement to sell he is in possession of the same as owner; that the appellants also received a sum of Rs.50,000/- out of the consideration amount and remaining amount of Rs.2,50,000/- had to be paid at the time of registration of the sale-deed; that after the demise of Hamza appellants refused to complete the sale whereas the respondent was inclined to make the balance payment of Rs.2,50,000/- towards the consideration amount.

3.  The suit was resisted by the appellants by filing contesting written statement on 14.3.1995 contending that the respondent had earlier lodged a suit which was dismissed as withdrawn without seeking permission to file fresh one therefore fresh suit is barred by law. The appellants also contended that neither their predecessor namely Hamza nor they themselves ever entered into any agreement to sell with the respondent. They also denied receipt of any earnest amount of Rs.50,000/- from the respondent. They categorically contended that in fact the suit land devolved upon their mother Mst. Rabiah Bibi real sister of the respondent as inheritance from her father; that the suit land was in joint Khata of Mst. Rabiah Bibi and the respondent; that the respondent cultivating the suit land has been paying share in produce to Mst. Rabiah Bibi; that after the demise of Mst. Rabiah Bibi the respondent out of greed is declining the appellants' co-sharership.

4.  Arguments heard. Record perused.

5.  Record reveals that after framing of issues on the basis of divergent pleadings of the parties respondent concluded his evidence on 11.1.1996. Appellants concluded their evidence on 8.11.2000. Thereafter on 22.11.2000 the respondent lodged an application under Order VI, Rule 17 of the Code of Civil Procedure 1908 seeking amendment in the plaint in order to incorporate the word `defendants' in Paras No. 2 and 3 of the plaint in order to assert that the defendants and their predecessor agreed to sell the suit land in his favour and also received a sum of Rs.50,000/- as advance money out of consideration amount. Proposed amendment was resisted by the appellants. However, learned trial Court allowed the application for amendment vide order dated 25.4.2001 while making observation that the proposed amendment is not likely to change the nature of the suit. It is astonishing that the appellants did not question the vires of the order dated 25.4.2001 before the appellate Court. However perusal of the issues framed by the learned trial Court even before amendment in the plaint transpires that Issue No. 4 was constituted in the manner that respondent's plea against the appellants stood sufficiently covered. It may be expedient to reproduce hereunder the pivotal Issue No. 4 which reads below:

"Issue No. 4. Whether the oral agreement to sell between the parties in respect of the land in dispute was arrived at for a consideration of Rs.3,00,000/- and the defendants received Rs.50,000/- in advance and delivered the possession to the plaintiff? OPP."

5.  Onus probandi of above Issue No. 4 was upon the respondent. There is no cavil to the proposition that in terms of Article 70 of the Qanun-e-Shahadat Order, 1984 all facts except the contents of documents may be proved by oral evidence. Article 71 of the Order ibid contemplates that oral evidence must, in all cases whatever, be direct.

6.  Abdul Majeed respondent while appearing in the witness-box as PW-1 stated that Ameer Hamza was owner of 44 Kanals and 12 Marlas of land in Mauza Ajja Bhutta who has died and his succession has devolved upon the appellants; that Ameer Hamza before 6 months of his death had agreed to sell the suit land in his favour in consideration of Rs.3,00,000/- and that he had paid advance sum of Rs.50,000/- in front of Muhammad Hussain Pattidar, Qamar Hussain and Ahmad Khan Lambardar and that appellants were also accompanying their father at that time. Bare reading of the above statement of Abdul Majeed respondent transpires that he has not stated that the appellants had entered into an agreement to sell their share in the land measuring 44 Kanals 12 Marlas or that he had paid any earnest money of Rs.50,000/- to the appellants.

7.  Respondent also produced Qamar Din as PW-2 who stated that the appellants are sons of his sister-in-law (Sali) and that appellants in possession had agreed to sell their land situated in Mauza Ajja Bhutta; that the respondent had paid Rs.50,000/- to the father of the appellants; that after the demise of Hamza appellants resiled and refused to perform the agreement. Statement of Qamar (PW-2) transpires that he neither stated that Hamza had entered into an agreement to sell the suit land with Abdul Majeed nor uttered that Muhammad Hussain PW-3 was present there. Respondent has also produced Muhammad Hussain as PW-3 who in his statement has not mentioned about the presence of Qamar Din PW-2 at the time of alleged agreement to sell between the parties.

8.  Both Qamar Din PW-2 and Muhammad Hussain PW-3 have also miserably failed to state that on what date or in which year parties had entered into an agreement to sell. Both also did not state that how much time had passed since the alleged agreement to sell between the parties. Even the respondent in his plaint has not named them as witness to the impugned agreement to sell. Suit for specific performance was lodged by the respondent on 9.5.2001. Before filing this suit he had also lodged a suit for permanent injunction against the appellants on 6.7.1994, copy whereof is available on the record as Exh.D/5. In the said suit respondent categorically asserted that Ameer Hamza died four months back and that the appellants and their predecessor namely Hamza had agreed to sell the suit land with the respondent in consideration of Rs.3,00,000/- about two years back meaning thereby the impugned agreement to sell between the parties was made about one year and 8 months before the demise of Hamza. Contrary to the above, while appearing in the witness-box as PW-1 in the suit for specific performance the respondent categorically stated that Ameer Hamza entered into the impugned agreement to sell with him 6 months before his demise. It is well established principle of law of evidence that a person can tell a lie but the documents cannot.

9.  Perusal of the impugned judgment dated 14.11.2001 passed by the learned trial Court transpires that the learned trial Court appears much impressed from a suggestion made by the appellants to Abdul Majeed respondent during cross-examination that he has been asking Hamza and the appellants to take money and give the land as the same is legacy of his father. It is astonishing that the learned trial Court miserably failed to appreciate the evidence in true perception with reference to the context. Before the said suggestion it was admitted by him that the suit land was part of joint Khata and mother of the appellants had not got it partitioned. The above referred suggestion fails to indicate any agreement to sell between the parties. Needless to say that the respondent was under heavy burden to prove the alleged factum of oral agreement to sell between the parties which he could not establish through reliable ocular or documentary account. It is therefore obvious that the learned trial Court highly misconceived the above noted suggestion. Findings of the learned trial Court on Issue No. 4 based on misreading and non-reading of evidence therefore being against law and facts are untenable. Learned appellate Court also fell in grave error by maintaining the erroneous findings of the learned trial Court on this issue.

10.  It is pertinent to mention that the Court commits an error if it acts contrary to law. The term `law' refers not only to statutory law but also general principles of law. If a Court acts contrary to law, it acts without jurisdiction and its order to that extent is nullity. It is bounden duty of the Court to decide the controversy between the parties on the basis of evidence on the record which is legally admissible. A decision based on mistaken assumption and misreading or non-reading of evidence, falls within the ambit of an error of law. In this case concurrent findings of both the learned Courts below therefore based on erroneous reasoning, and misreading and non-reading of the evidence are untenable and liable to set aside.

11.  For the above reasons, the appeal is accepted, judgments and decrees of both Courts below are set aside and the respondent's suit for possession is dismissed with costs.

(R.A.)  Appeal accepted

Evidence in a Rent Case

PLJ 2012 Islamabad 128

Present: Shaukat Aziz Siddiqui, J.

M/s. KING CLOTHING--Petitioner

versus

MUHABAT KHAN etc.--Respondents

W.P. No. 259 of 2010, decided on 20.12.2011.

Islamabad Rent Restrictions, Ordinance, 2001 (IV of 2001)--

----S. 17(8)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Ejectment petition--Tenant was directed to deposit monthly rent--Ejectment petition was allowed--Challenge to--Direction to make entire payment of outstanding rent--Tenant side was mum and silent--Validity--If any part of testimony of a witness remains unchallenged through cross-examination, said part is tantamount to admission--Petition was dismissed.      [P. 132] A

1991 SCMR 2300, 1992 CLC 807, 1999 CLC 266, 2003 CLC 1294, 1999 YLR 2604, 2001 MLD 1277 & 1992 MLD 810, ref.

Mr. Abdul Rauf Rohaila, Advocate for Petitioner.

Mr. Khalid Zaman, Advocate for Respondent Nos. 1 to 8.

Date of hearing: 20.12.2011.

Order

By invoking the constitutional jurisdiction of this Court, petitioner has sought declaration against concurrent findings, to the effect that order dated 20.04.2007 passed by the Rent Controller, Islamabad and order dated 22.12.2009 passed in appeal by the Additional District Judge, Islamabad are illegal against the facts and evidence available on the record, which are liable to be set aside.

2.  Brief facts, as glean out from the writ petition are that Respondent Nos. 1 to 8 are owners/landlords (hereinafter called as landlord) of Shop Nos. 7, 8 and 68-E, PaktelPlaza, Blue Area, Jinnah Avenue, Islamabad (hereinafter called as premises).

3.  Premises were leased out through Deed dated 15.10.2003 to petitioner (hereinafter called as tenant) the period of which expired on 14.10.2005. Landlord of the premises filed ejectment petition u/S. 17 of the Islamabad, Rent Restrictions, Ordinance 2001. In pursuance of process issued, tenant put his appearance and filed reply to the ejectment petition. In light of stance taken by parties, the learned-Rent Controller passed order under Section 17(8) of I.R.R.O whereby tenant was directed to deposit monthly rent @ Rs. 50,820/- starting from October, 2005 up to 19.06.2006. Tenant was further directed to deposit monthly future rent in the Court before 15th of each month.

4.  Out of divergent pleadings of parties, following issues were framed :--

(i)         Whether demised shop is required by the petitioners for their bona fide personal need? OPA

(ii)        Whether the respondent has encroached upon the Verandah in violation of lease agreement and CDA bylaws? OPA

(iii)       Whether the lease agreement has expired on 14.10.2005. If so, its affect? OPA.

(iv)       Whether the respondent failed to hand over the possession of demised shop in spite of legal notice dated 11.07.2005? OPA

(v)        Whether the respondent is liable to be ejected? OPA

(vi)       Whether the petition has been filed with mala fide intention? OPR.

(vii)      Order.

Vide order dated 20.04.2007, ejectment petition was allowed. Feeling aggrieved, tenant preferred an appeal u/S. 21 of I.R.R.O. The learned appellate Court upheld the findings of rent controller, vide impugned judgment dated 22.12.2009.

5.  Perusal of order sheet shows that my learned brother Mr. Justice, Ijaz-ul-Ahsan, J; of Lahore High Court, entertained the writ petition and vide order dated 25.01.2010 directed issuance of pre-admission notice to the respondents/landlord. And vide order of even date passed in C.M. No. 1 of 2010. His Lordship further directed that:--

"Subject to notice and till the next date of hearing, the petitioner shall not be dispossessed. The petitioner shall keep the demised premises intact and shall not cause any damage or destruction of any nature. It is, however, clarified that unless specifically extended, this restraining order shall automatically lapse on the next date of hearing. The petitioner shall deposit the up-to-date agreed rent with the executing Court. This will of course be without prejudice to any legal objections/pleas taken by the respondents regarding default, committed in the past or that may be committed by the petitioner in the future."

6.  Petitioner/tenant moved C.M. No. 420/2010 for seeking permission to place on record documents mentioned in Paragraph No. 3 of C.M. which was allowed vide order dated 5.03.2010. Another C.M. No. 421/2010 was also moved through which ad-interim injunction granted vide order dated 25.01.2010 was directed to be continued till next date of hearing.

7.  On receipt of writ petition from Hon'ble Lahore High Court, Rawalpindi Bench, notices were issued, in response to which parties have put their appearance.

8.  Learned counsel for petitioner submits that learned rent controller and First Appellate Court failed to appreciate the evidence brought on the record and law on the subject, more particularly when landlord was failed to prove his personal bona fide need. On the other hand, learned counsel for landlord/respondents submits that petitioner has no right of audience as in terms of order dated 25.01.2010, no rent has been deposited with the Court and through C.M. No. 420/2010, an effort was made to cover the default. Learned Counsel further states that there is concurrent findings of law and facts recorded by the Courts below; therefore, writ petition is not maintainable. He placed reliance on the cases of Javaid Ahmed Vs. Muhammad Imran Malik (PLD 2011, Islamabad 30) M/s. Zaki-ud-din Siddiqui Vs. ADJ, Islamabad(2011 CLC 652) and Muneer Khan Vs. Uzma Ufaq (2011, CLC 846).

9.  I have heard, learned counsel for parties and made perusal of record.

10.  One thing which is floating on the surface of the record is that order dated 25.1.2010 has not been complied, in its letter and spirit. Tenant tried his level best to linger on the proceedings and succeeded in it as period of almost 02 years has elapsed but no rent deposited till todate. Although, stance has been taken through C.M. No. 420 of 2010 that no application was pending with the executing Court, but to my mind it is nothing, except chicanery. In order to show bona fide, petitioner/tenant was required to seek permission to deposit rent in this Court, if any difficulty was ever faced by him.

11.  The High Court, in its constitutional jurisdiction is required to observe demeanour of parties as well, and to satisfy itself whether any litigant, invoked the jurisdiction of the Court with clean hands or stinking approach? Moreover, Court is not to sit as a spectator, if any party tries, to gain undue advantage. In such eventuality it is duty of the Court to provide shield to a victim of such designs. Superior Courts of the country have held time and again that the constitutional jurisdiction is always discretionary, and he who seeks equity must come with clean hands. Following Judgments of apex Court, provide guidance in this regard; Muhammad Saee Vs. Mst. Sharif Elahi and another (2010 SCMR 1358), Tasnim Jalil and others Vs. Deputy Director, A.N.F (2010 SCMR 72) Syed Kamal Shah Vs. Govt. of N.W.F.P (2010 SCMR 1377).

In these circumstances, petitioner/tenant is directed to make entire payment of outstanding rent by 31st. December, 2011 with the Deputy Registrar, Judicial of this Court. If he complies with the order then period of one month commencing from 1st. Jan. to 31st. Jan. 2012 will be available to tenant to vacate the premises and hand over its vacant and peaceful possession to landlords, otherwise landlord shall be at liberty to move an application before the executing Court. (Landlord present in Court has given assent in this regard). The Court shall ensure recovery of possession without notice, and to avoid law and order situation, may take appropriate measures like assistance of police etc.

12.  Even on merits, landlord successfully proved their case on Issue Nos. 1, 2, 3, 4 and 5. For instance, Paragraph No. 3 of the ejectment petition relates to Issue No. 2, which is reproduced hereunder:--

"That the respondent has also included the back veranda with the shops in his occupation by constructing the walls, not only without their permission but against specific instructions and CDA bylaw and has thus prejudice their cause before CDA for completion certificate which is the violation of lease agreement and his possession over the area of veranda is as of illegal occupant/trespasser. His above said action has also impaired materially the utility of the building that is also a violation in the eyes of law."

Petitioner/tenant replied the same with following assertion:--

Abdul Qayyum S/o Sher Bahadar Khan one of landlords appeared as "AW1" and tendered his affidavit "Ex-A1". Contents of Para-3 of his affidavit are provided herein below:--

Entire cross-examination conducted from petitioner/tenant side is mum and silent on this aspect/it is well settled law with the mandate of the dictums of the superior Courts of the country that if any part of testimony of a witness remains unchallenged through cross-examination, said part is tantamount to admission. Reference is made to the cases of Mst. Nur Jehan Begum Vs. Syed Mujtaba Ali Naqvi (1991 SCMR 2300), Mst. Sahab Bibi Vs. Lal (1992 CLC 807), Jan Muhammad Vs. Mulla Abdul Rehman(1999 CLC 266) Abdul Sattar and others Vs. Mst. Sardar Begum (2003 CLC 1294), Ali Yousaf Vs. The State (1999 YLR, 2604) Ghulam Rasool and others Vs. The State (2002 YLR 1996) Muhammad Akram Vs. Muhammad Rauf (2001 MLD 1277) and Arshad Mehmood Siddiqui Vs. Muhammad Haroon, (1992 MLD 810). When confronted about this omission, learned counsel for petitioner frankly conceded that no cross-examination was conducted, so much so, no suggestion is put to "AW-1".

13.  In this view of the matter, it is held that both the Courts below appreciated the evidence in its true perspective which does not call for any inference in the constitutional jurisdiction. The learned counsel for the petitioner failed to point out jurisdictional defect, illegality, non-application of judicial mind and lack of appreciation of material on record, therefore, this writ petition is dismissed.

(R.A.)  Petition dismissed