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Constitutional Petition No. S. 68 of 1985, decided on 13th April 1986.
‑‑‑8. 14‑‑Interlocutory order passed by family Judge refusing application of petitioner to summon a witness‑‑Such order, held, was not appealable.
Azhar‑ul‑Hassan Naqvi v. Mst. Hamida Bibi and 2 others 1979 CLC 754 and Adnan Afzal v. Col. (Retd:) Sher Afzal and 2 others PLD 1982 Lah. 755 ref:
‑‑‑Ss. 7(2) proviso 14‑‑Family Court, while trying a case, although competent to summon any witness at any stage of proceedings yet where in opinion ‑of the Court _ no convincing ground was shown to summon a witness, order of Court refusing prayer for summoning a witness was not illegal‑‑Power to summon a witness at any stage of proceedings, held, discretionary and for summoning such witness as prayed for must also be felt by court.
Zahid Marghoob for Petitioner.
Respondent (absent).
Date of hearing: 13th April 1986.
By this petition under Article 199 of the Constitution, .the petitioner has questioned the order of the IVth Additional District Judge, Karachi, whereby he dismissed the appeal of the petitioner filed under section 14 of the Family Courts Act against the order of the trial Court, dated 14‑10‑1984.
The respondent had instituted a suit, for dissolution of marriage, which is presently pending before the XIIth Senior Civil Judge and Family Judge at Karachi. During the course of the hearing of the suit, the petitioner moved an application for summoning Mst. Khursheed Begum as a witness in the case, who was shown in the list of witnesses filed by the respondent, but she was not examined by her. The learned trial Judge dismissed the application for summoning Mst. Khursheed as a witness both on the ground that it was a belated application and no convincing ground had been shown for summoning the proposed witness. Against the order of the trial Judge, an appeal was filed, which was dismissed as not maintainable, under section 14 of the Family Courts Act. These orders are now challenged in this petition.
Mr. Zahid Marghoob, the learned counsel for the petitioner contends that, under section 14 of the Family Courts Act, both the final order as well as a decision by the Family Court are appealable and, as such, the order, dated 14‑10‑1984, passed by the trial Judge, dismissing the application for summong the witness was appeal able under section 14 of the Family Courts Act. The learned appellate Court, while rejecting the appeal as not maintainable, had referred to the decisions in the cases of Azhar‑ul‑Hassan Naqvi v. Mst. Hamida Bibi and 2 others 1979 C L C 754 and Adnan Afzal v. Col. (Retd.) She r Afzal and 2 others ‑P L D 1982 Lah. 755. In both these cases, the learned Single Judge of the Lahore High Court have interpreted the word "decision" as not including interlocutory orders, which do not amount to final decision of the case. The learned counsel for the petitioner is unable to distinguish the decision, and I see no reason to differ with the reasoning given in the aforesaid cases and, as such, no interference is called for so far as the order of the trial Court, dated 9th May, 1985, is concerned. With regard to the order of the trial Judge, the contention of the learned counsel for the petitioner is that the power vested in the Family Court under section 7, subsection (2) proviso is very wide, and the Family Court, while trying a case, can summon any witness at any stage of the proceedings. The contention raised by the learned counsel is unexceptional but, in the present case, the learned trial Judge while declining the request of the petitioner to summon the witness, reached the conclusion that no convincing ground had been shown to summon the witness. It is quite clear from the revision relied by the learned counsel that the power to summon a witness at any stage of the proceedings by the trial Court is discretionary and necessity for summoning such witness must be felt by the Court. As the trial Judge did not feel it necessary to examine the witness, for which a prayer was made by he petitioner to summon, there appear no illegality in 'the order, dated 14‑10‑1984. There is no merit in. this petition, which is accordingly dismissed summarily.
M.Y.H. Petition dismissed
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