Can list of witnesses be changed?
📝 AI Summary — Plain-Language Overview
This case involved a wife who had filed a suit for dissolution of her marriage against her husband. As part of her case, she submitted a list of witnesses she intended to produce. When she was unable to produce those particular witnesses, she filed a second, revised list. The Family Court allowed this second list, and the witnesses named in it were examined, with only the wife's own statement remaining to be recorded.
The husband challenged the Family Court's order allowing the new witness list by filing an appeal before the Shariat Court, which accepted his appeal and set aside the Family Court's order.
The wife then approached the Supreme Court of Azad Kashmir, arguing that the Family Court's order was merely an interlocutory (procedural, non-final) order, not a final judgment or decree, and therefore no appeal against it could lie before the Shariat Court.
The Supreme Court agreed with her. It held that under the Family Courts Act, only final decisions or decrees of a Family Court can be appealed to the Shariat Court, not interlocutory orders like the one permitting a new witness list. The Court also found that the Shariat Court had wrongly treated the wife's application as a "review application" when it was simply a request to produce witnesses. Since the witnesses had already testified, the entire dispute had become moot. The Supreme Court therefore set aside the Shariat Court's judgment, reinforcing the principle that procedural orders during trial are not appealable.
یہ مقدمہ ایک بیوی سے متعلق تھا جس نے اپنے شوہر کے خلاف فسخ نکاح کا دعویٰ دائر کیا تھا۔ اپنے مقدمے کے دوران اس نے گواہوں کی ایک فہرست پیش کی جنہیں وہ عدالت میں پیش کرنا چاہتی تھی۔ جب وہ ان مخصوص گواہوں کو پیش کرنے میں ناکام رہی تو اس نے گواہوں کی ایک دوسری، نظرثانی شدہ فہرست جمع کرائی۔ فیملی کورٹ نے اس دوسری فہرست کو منظور کر لیا اور اس میں درج گواہوں کے بیانات قلمبند کیے گئے، جس کے بعد صرف بیوی کا اپنا بیان قلمبند ہونا باقی رہ گیا تھا۔
شوہر نے فیملی کورٹ کے اس حکم کے خلاف، جس میں نئی فہرست کو منظور کیا گیا تھا، شریعت کورٹ میں اپیل دائر کی۔ شریعت کورٹ نے اس کی اپیل منظور کرتے ہوئے فیملی کورٹ کا حکم کالعدم قرار دے دیا۔
اس کے بعد بیوی نے آزاد کشمیر کی سپریم کورٹ سے رجوع کیا اور یہ استدلال پیش کیا کہ فیملی کورٹ کا مذکورہ حکم محض ایک عبوری (طریقہ کار سے متعلق، غیر حتمی)
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Citation Name : 2012 YLR 2231 SUPREME-COURT-AZAD-KASHMIR Side Appellant : FIRDOS BAKHAT Side Opponent : JAVED KHAN S. 5, Sched. & S.14(1)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Suit for dissolution of marriage---Application for production of list of witnesses---Plaintiff who filed suit for dissolution of marriage against defendant also appended a list of witnesses---Plaintiff who could not produce witnesses mentioned in the list, filed another list of witnesses, which was finally allowed and the Trial Court recorded statements of said witnesses and only the statement of plaintiff was yet to be recorded in the suit---Said order of Family Court allowing the second list was challenged by the defendant in the Shariat Court through an appeal ---Shariat Court accepted the appeal and set aside the order of Family Court---Contention of counsel for the plaintiff was that impugned order of Family Court being interlocutory order and not a final judgment, appeal filed by the defendant before Shariat Court, was liable to be dismissed, because no appeal lay against an interlocutory order---Contention of counsel for defendant was that order passed by the Family Court was final order and appeal before Supreme Court was competent---Validity--- Application filed by the plaintiff for allowing her to produce some other witnesses was accepted by the Family Court; and that order was an interlocutory order and could not be a final judgment--- appeal against said order was not maintainable before the Shariat Court---Under provisions of S.14(1) of Azad Jammu and Kashmir Family Courts Act, 1993, only decision or decree of Family Court was appeal able before the Shariat Court---Findings of Shariat Court that application filed by the plaintiff before the Family Court was a review application; and that Family Court had no jurisdiction to entertain such application, was contrary to record---Application filed by the plaintiff for summoning witnesses, was not a review application, but was an application for production of witnesses---After acceptance of said application, statements of witnesses summoned, had already been recorded by the Trial Court---After said development, whole subsequent practice had become futile and academic; even on merit---Judgment of Shariat Court, was set aside by Supreme Court in circumstances.