IN THE SUPREME COURT OF PAKISTAN 
(Appellant Jurisdiction) 
 
 
 
 
 
PRESENT: 
 
 
Mr. Justice Sardar Tariq Masood 
Mr. Justice Sajjad Ali Shah 
 
Civil Petition No. 720/2020 
(Against the order dated 31.12.2019 passed by the 
Islamabad High Court in WP No. 2286 of 2019) 
 
Amjad Khan 
… Petitioner(s) 
Versus 
 
Muhammad Irshad (decd) thr. his LRs.  
…Respondent(s) 
 
 
For the Petitioner(s) 
 
: Syed Mastan Ali Zaidi, ASC 
Mr. Mehmood A. Sheikh, AOR  
 
For the Respondent(s) 
: Syed Zulfiqar Abbas Naqvi, ASC 
Syed Rifaqat Hussain Shah, AOR 
 
  
Date of Hearing 
 
: 28.09.2020 
 
JUDGMENT 
 
 
 
 Sajjad Ali Shah, J. The Petitioner seeks leave of this Court to appeal 
against the judgment of the Islamabad High Court, whereby the High Court, while 
allowing the constitution petition filed by the Respondents, reversed the order of 
the learned appellate court granting the Petitioner’s application under Order XVI 
Rule 1 of the Code of Civil Procedure 1908 (“CPC”) permitting him to produce 
three witnesses subject to the cost of Rs.10,000/-. 
Facts and Procedural History 
2. 
 
Briefly, when the Petitioner stepped into the witness box, it transpired 
that list of witnesses as required under Order XVI Rule 1(1) CPC was not available 
on record. Consequently, an application was moved seeking permission to produce 
two marginal witnesses of the agreement, which was the subject-matter of the suit 
and was duly produced and exhibited by the Petitioner in his evidence, and one 
CP 720 of 2020 
2
“arbitrator” of the said agreement. This application was based on the grounds that 
the initial application for producing list of witnesses filed by the Petitioner stood 
misplaced and that the Petitioner was out of country on account of death of his only 
son, which is why he could not properly pursue his case. The said application, after 
hearing, was dismissed by the trial court. The Petitioner then filed an appeal against 
the order of the trial court, which was allowed by the appellate court subject to cost 
of Rs.10,000/- on the grounds that the application provided good cause and that 
such witnesses, if examined, would not cause any surprise to the Respondents as 
the agreement whose marginal witnesses were sought to be produced is already on 
record. Against this order, the Respondents filed a constitution petition under 
Article 199 of the Constitution of Pakistan 1973, which was allowed by the High 
Court in light of the dictum laid down in the case of Muhammad Anwar Ali vs. Ilyas 
Begum (PLD 2013 SC 255) and the order of the appellate court was reversed. 
Submissions of the Parties 
3. 
 
Learned counsel for the Petitioner contends that the High Court 
totally failed to consider that the appellate court in its order has discussed in detail 
the judgment of this Court in the case of Muhammad Anwar Ali (supra) and its effect 
and thereafter it concluded that the witnesses sought to be produced were marginal 
witnesses of the agreement and the arbitrator of the said agreement and the 
Respondents from the day one knew their role and it could not, by any stretch of 
imagination, be said to be a surprise for the Respondents. Per counsel once the 
appellate court has exercised its discretion by coming to the conclusion that the 
Petitioner has given good cause for filing of application for the production of 
evidence, then there was no room for the High Court to intervene while exercising 
the constitutional jurisdiction. It was lastly contended that the Supreme Court in the 
case of Muhammad Anwar Ali (supra) has not totally shut the doors of allowing such 
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3
request at subsequent stage, therefore, the intervention after the learned appellate 
court found that the Petitioner has detailed good cause, was un-called for.      
4. 
 
On the other hand, learned counsel for the Respondents while relying 
upon the judgment of this Court in the case of Muhammad Anwar Ali (supra) has 
vehemently contended that the delay in filing the application under Order XVI Rule 
1 CPC clearly indicate that the Petitioner wanted to prolong the proceedings and 
the law does not allow the production of witnesses as such a belated stage. He 
further contended that at one breath the Petitioner contends that his application has 
been misplaced and on the other it is asserted that due to death of his only son, he 
could not concentrate on the proceedings and was abroad which is contradictory 
and could not be held good cause.  Counsel has further relied on the judgment of 
this Court in the case of Haji Zarwar Khan vs. Haji Rehman Bangash (2016 SCMR 1976) 
in support of his stance.  
5. 
 
However, on our query, the learned counsel for the Respondents had 
no option but to concede that the witnesses sought to be produced are marginal 
witnesses of the agreement and the arbitrator of the said agreement and that the 
agreement finds mention in the plaint, has been produced exhibited by the 
Petitioner herein in his evidence. We have further asked the counsel as to whether 
the judgment in the case of Muhammad Anwar Ali (supra), which is based on an 
amendment introduced by the Lahore High Court (“LHC”) in Order XVI Rule 1 
CPC, applies to Federal Capital Area which has its own High Court, but he could 
not point out any such amendment undertaken or adopted by the Islamabad High 
Court. 
Opinion of the Court 
6. 
 
We have heard the learned counsel for the parties and have gone 
through the record as well as the case law cited at bar. The question involved in the 
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subject petition is as to whether the original text of Order XVI Rule 1 CPC places 
any embargo on production of a witness by a party whose name does not find 
mention in the list of witnesses or it pertains to only those witnesses whom a party 
to the proceeding wants to call through court either to give evidence or to produce 
documents.  
7. 
 
Order XVI of the CPC regulates the summoning and attendance of 
witnesses in order to protect the interests of litigating parties. To this end, its Rule 1 
puts an embargo on the right of litigants to summon witnesses in support of their 
claims. This embargo provides that litigating parties shall submit in court a list of 
witnesses to be called for attendance within seven days following the framing of 
issues, and that they shall not be permitted to call any witnesses outside of this list, 
except with the permission of the court. The purpose of this embargo is to ensure 
that the litigating parties may prepare their cases with a measure of certainty and 
know the kind of evidence that is going to be produced, so that they may make 
necessary preparation for rebuttal and cross-examination and are not taken by any 
surprise at a belated stage in the proceedings. In this regard, reference can be made 
to Muhammad Anwar Ali (supra). 
8. 
 
Now the primary question to be decided in this case, as mentioned 
earlier, is as to whether this embargo extends to those witnesses who are not 
mentioned in the list of witnesses, but are voluntarily produced by the parties 
without invoking the summoning authority of the court. The answer to this 
question becomes clear when we examine the overarching scheme of Order XVI. 
Indeed, a close reading of this Order shows that all of its provisions directly or 
indirectly relate to summoning of witnesses through the process of court: 
i. 
Rule 1(1) mandates the litigants to file a list of witnesses “whom 
they propose to call either to give evidence or to produce documents” and 
places an embargo on the parties that disallows them from calling 
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5
a witness whose name does not appear in that list except with the 
permission of the court upon disclosure of a good cause;  
ii. 
Rule 2 provides for the determination and deposit of the expenses 
of witnesses in the court;  
iii. 
Rule 3 prescribes that the deposited sum shall be paid to the 
summoned person at the time of service if possible;  
iv. 
Rule 4 provides for the procedure that may be triggered if the 
deposited sum is insufficient;  
v. 
Rule 5 states that every summons shall specify the time, place and 
purpose of the required attendance;  
vi. 
Rule 6 provides that a person summoned for producing 
documents may do so without personal attendance;  
vii. 
Rule 7 empowers the court to ask any person present in court to 
give evidence or to produce any document then and there in his 
possession or power;  
viii. 
Rule 8 provides for the mechanism through which summons 
under Order XVI may be served;  
ix. 
Rule 9 states that the service of summons should be effected in 
reasonable time;  
x. 
Rule 10, 11 and 12 provide for the procedure and the consequences 
that may follow such as arrest, attachment or sale of his property if 
a summoned witness fails to tender attendance in terms of the 
summons;  
xi. 
Rule 13 then makes the provisions of Order XXI applicable on such 
attachment and sale;  
xii. 
Rule 14 and 14A make provisions for another category of 
witnesses, and their expenses, that may be summoned by the court 
of its own motion;  
xiii. 
Rule 15 imposes a duty on the summoned witness to comply with 
the terms of the summons;  
xiv. 
Rule 16 empowers the court to ensure that the summoned witness 
remains in attendance and furnishes security, if required, for 
attendance at a later date in the suit;  
xv. 
Rule 17 provides that if the witness departs without lawful excuse, 
s/he may be dealt with in accordance with Rule 10-13;  
xvi. 
Rule 18 also empowers the court to release a person arrested under 
the preceding provisions upon furnishing reasonable bail or 
security for appearance at a later date; 
xvii. 
Rule 19 emphatically provides that summons shall not be issued to 
any person unless s/he resides within Pakistan; and 
xviii. 
Rule 20 gives the court the discretion to pass appropriate orders or 
judgment against a litigant that refuses to give evidence or 
produce any document when asked upon to do so by the court.  
 
9. 
 
As is evident, none of these provisions mention the category of 
witnesses that the litigants produce on 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 
CP 720 of 2020 
6
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. 
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 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 CPC or produced in court at the first hearing of the suit, i.e. after the framing 
of issues, under Order XIII Rule 1 CPC. 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 
CPC. In this regard, reference can be made to Sher Baz Khan vs. The State (PLD 2003 
SC 849) and Javed Rafat Kkan vs. 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 CPC was introduced, not to prevent the parties from 
producing witnesses present in the court on the day the evidence of the parties is 
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being recorded whose testimony may be material for a just resolution of the 
controversy.  
11. 
 
The distinction between witnesses called through the process of the 
court and witnesses voluntarily produced by the parties was first examined by a 
larger bench of the LHC in the case of Ghulam Murtaza in the following terms: 
“The words “produce” and “call” are not at all synonymous. Word “produce” 
according to note 1 of the Oxford English Dictionary, Volume VIII, has been 
described to mean “to bring forward, bring forth or out; to bring into view, to 
present to view or notice; to offer for inspection or consideration, often used of 
bringing forward witnesses, as well as evidence or vouchers in a Court of 
law.” The words “witnesses in attendance” used in rule 4 of Order XVIII 
further clarify the position that witnesses who are brought by the patties in 
Court have to be examined by the Court. Now comparing the word “call” 
used in the term of summoning cannot equate with word produce and in 
attendance used in rules 2 and 4 of Order XVIII, C. P. C. Comparing the 
terms of art used in Order XVI and Order XVIII it is manifestly clear that the 
Legislature only placed fetters for the call of witnesses through Court for 
which a list has to be submitted within the prescribed period under the present 
rule. Had the Legislature intended to place similar restrictions on the 
production of witnesses by the parties without the aid of the Court, the word 
“produce” should have been inserted in between the words “proposed to call” 
and either to give evidence in rule 1 and in-between the word “to call” and 
witness used in sub-rule (2) of Order XVI, C.P.C. Having not done so, the 
intention of the Legislature is, therefore, absolutely clear that the parties are at 
liberty to bring witnesses along with them on the day when the case is fixed 
for evidence and the Court cannot refuse recording of their evidence according 
to rule 4 of the said Order.”1 
12. 
 
The matter thereafter had come up before this Court in the case of Mst. 
Musarrat Bibi vs. Tariq Mahmood Tariq (1999 SCMR 799), wherein this Court approved 
the meaning given to the word “call” in Order XVI Rule 1 CPC by the LHC. It 
appears that this led the LHC to make amendment in Order XVI Rule 1 CPC by 
inserting the word “or produce” after the word “call” in its sub-rule 1 and sub-rule 
2, requiring the litigant to provide a list of witnesses in respect of both kinds of 
witnesses.2 The judgment in the case of Muhammad Anwar Ali (supra), relied upon by 
the learned counsel for the Respondents, is based on the amended Order XVI Rule 1 
                                                
1 Underlined by us to supply emphasis. 
2 Lahore High Court Amdt. Added by Notification No. S.R.O. 330 Rules/XI-Y-26, dated 02.10.2001 
(Notified in the Gazette of Punjab, Extra, Part III, dated 28.11.2001). 
CP 720 of 2020 
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CPC (though in the year 2018 the LHC has substituted Order XVI Rule 1 CPC to 
ensure that the list of witnesses contains the names of both kinds of witnesses),3 
which is why it does not draw distinction between the witnesses produced by the 
parties themselves and the witnesses to be summoned through process of the court. 
Notwithstanding such factor, it still leaves open for the court to allow the 
production or summoning of the witnesses at a belated stage upon showing of a 
good cause. It appears that for want of proper assistance from the bar, neither this 
distinction nor the facts that the case of Muhammad Anwar Ali (supra) was based on 
an amendment introduced only by the LHC and was therefore not available for the 
other provinces or the Federal Capital Territory, were brought to the notice of the 
High Court. These aspects need to be properly considered, as this Court is supposed 
to provide not undue but a fair opportunity to the parties to prove their case. In the 
instance case, we have asked the learned counsel for the Respondents to 
demonstrate any prejudice or element of surprise which might be caused to the 
Respondents, but he could not show us any. He kept on insisting that the Petitioner 
should not be allowed to produce his witnesses due to the delay, which clearly 
reflects that the Respondents intend to steal a march upon the Petitioner on account 
of non-production of the witnesses as their non-production would be fatal to the 
Petitioner’s claim.  
13. 
 
It should however be noted that the fact that the embargo contained in 
Order XVI Rule 1 CPC is inapplicable to witnesses that the parties voluntarily 
produce does not mean that the parties are at liberty to produce such witnesses at 
any time during the proceeding. As was held in Ghulam Murtaza vs. Muhammad Ilyas 
(PLD 1980 Lahore 495), a careful analysis of the language of Order XVI Rule 1 CPC 
                                                
3 Lahore High Court Amdt. “Civil Procedure Code (Amendment of First Schedule) 2019” Added by 
Notification No. 237/Legis/XI-X-26, dated 15.08.2018 (It should be noted that these amendments 
have not come into force yet, as the same are subject to notification by the Lahore High 
Court, which is yet to be issued). 
CP 720 of 2020 
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read with Order XVIII Rule 2, Rule 4 and Rule 17 CPC shows that such witnesses 
can only be examined if they are “produced and are in attendance on the day for 
recording of evidence.”4 In this matter, we agree with the interpretation put forward by the 
LHC and approve the same insofar as the voluntary production of witnesses is concerned. 
14. 
  
In the end, we would like to observe another aspect which was not 
brought to the notice of the High Court, namely, that it is by now a settled principle 
of law that the High Courts must not exercise their constitutional jurisdiction in 
order to interfere with the discretion exercised by lower courts unless the same 
suffers from jurisdictional, factual or legal errors. In other words, such interference 
would be justified in cases where the impugned order has been passed without 
jurisdiction or is based on misreading or non-reading of evidence, or is not in 
accordance with the law. If none of these errors is present, the High Courts must not 
exercise their constitutional jurisdiction to interfere with the findings of lower courts 
merely because it reached a different conclusion as to the controversy than the latter. 
In this regard, reference can be made to a collective reading of Mst. Mobin Fatima vs. 
Muhammad Yamin (PLD 2006 SC 214) and Nadira Shahzad vs. Mubashir Ahmad (1995 
SCMR 1419). 
15. 
 
The record shows that the learned appellate court allowed the 
application of the Petitioner by detailing the following reasons: 
“The Hon’ble Supreme Court in judgment PLD 2013 SC 255 has not stopped 
the trial courts from receiving the list of witnesses when good/sufficient cause 
is shown. The petitioner has mentioned in his application that he had to go to 
[sic] abroad due to death of his son. No doubt petitioner has moved the 
application for permission to produce the witnesses after lapse of many years, 
but law also prevent [sic] from non-suiting any party mere [sic] on technical 
ground. When the petitioner has moved application by mentioning good cause 
then he should have been given chance to prove his case by producing entire 
evidence. The learned trial court has knocked out the petitioner mere [sic] on 
delay in submission of the list of witnesses. The order of the learned court 
suffers irregularity, hence not sustainable. In view of the above discussion the 
                                                
4 See the case of Ghulam Murtaza (supra), para 9. 
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revision petition is accepted, and impugned order is set aside. Resultantly 
application filed by the petitioner u/o XVI rule 1 C.P.C. stands accepted 
subject to cost of Rs.10,000/- (ten thousands) which shall [sic] before the 
learned trial court. It is clarified that the petitioner himself shall produce the 
witnesses mentioned in the list at his own cost.” 
Examining the reasoning of the learned appellate court in light of the preceding 
discussion reveals that the court thoroughly perused the record and entered cogent 
reasons for accepting the application. In absence of any infirmity that would have 
warranted the exercise of constitutional jurisdiction of the High Court, we hold that 
no case for interference was made out in the discretion exercised by the learned 
appellate court. Even otherwise, the Petitioner was entitled to produce witnesses on 
his own motion as of right on the day of recording of evidence even if no application 
had been made. As such, we direct the trial court to allow the production of two 
witnesses to the agreement and the arbitrator in terms of the order of the learned 
appellate court, and the Petitioner shall produce all the witnesses together for 
recording of the evidence on the same day. 
16. 
 
The foregoing are the reasons for the Short Order of even date 
whereby this petition was converted into appeal and allowed. That Order reads as 
follows:  
“For reasons to be recorded later, this petition is converted into appeal and 
allowed. Learned trial Court is directed to decide the suit within three 
months.” 
                  
 
 
 
Judge 
 
 
 
Islamabad, the  
28th September, 2020 
Approved for reporting 
Asad Ullah Khan, LC. 
 
Judge