2026 P Cr (PLP)

S M Attique Shah, J.

Petitioner, through the instant criminal revision, has called in question the order dated 16.12.2024 of the learned Sessions Judge, Khyber / trial court, whereby while accepting the request of the learned APP, the PW-2 namely, Khanzeb has been declared as hostile witness and in turn the prosecution has been permitted to cross-examine him.

2. The gist of the arguments of the learned counsel for the petitioner is that a prosecution witness cannot be declared as hostile witness as per the spirit of Article 150 of the Qanun-e-Shahadat Order, 1984 when his testimony is shattered during his cross-examination by the defence and as such, the order, impugned herein, being based on illogical, artificial and arbitrary reasons is liable to be set aside.

3. The main thrust of the submissions of the learned A.A.G. is that when the said prosecution witness being the seizing officer has himself resiled from his stance rather remained instrumental to damage the entire prosecution case by giving concessional statement in favour of the accused, then, in that event, the learned trial court was left with no option but to declare him as hostile witness while acceding to the request of the prosecution and, as such, the impugned findings being well-reasoned and perfect are not open to any interference.

4. Heard. Record perused.

5. Record reveals that the petitioner in an accused in case registered against him vide FIR No.177 dated 17.04.2024 under section 11(C) of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 of Police Station Jamrud, Khyber while the allegations against him are that a recovery of 20000 grams of Ice has been effected from the motorcycle, which he was riding at the relevant time and as such after arrest he has been booked in the ibid FIR. On completion of investigation, the accused-petitioner was challaned to the court for trial. The copies of the relevant documents under Section 265-C, Cr.P.C were provided to him and charge was framed against him on 10.07.2024, to which he pleaded not guilty and claimed trial. At the trial, the prosecution, in order to prove the charge and substantiate the allegations levelled against the accused-petitioner, produced Tahir Khan Muharrir (PW-1) on 31.08.2024 while examined Khanzeb SI / Seizing Officer (PW-2) on 03.12.2024. The seizing officer during the course of his examination-in-chief, remained stitched to his version, which he had given in the FIR while during cross-examination, he allegedly deviated from the contents of the FIR as well as examination-in-chief. At that particular juncture, a request was made by the prosecution through APP to the learned Trial Court to declare PW Khanzeb SI as hostile witness and the prosecution be allowed to cross-examine him. Such request has been handed down by the learned trial court in the following manner:- "At this stage learned APP on behalf of State Mr. Asim Khan requested to declare the witness hostile for the reason that as prosecution case the complainant handed over case property to moharrir (Cross-Examination to be continued)." On the next date of hearing i.e. 16.12.2024, arguments were heard on such request of the learned APP and the learned Trial Court has passed the impugned findings in the following manner:- "

2. The request to declare the PW-02 as hostile witness was made by the learned APP after statement of the PW-02 that the case property was handed over to Constable Ilyas by the complainant for shifting to Police Station which, according to him, was handed over by the complainant to Muharrir. The perusal of Murasila disclose the fact that the Murasila was handed over to constable Ilyas by the complainant to take it to Police Station for registration of FIR. Since statement of PW-02 is against the record, therefore, he does not seem to be desirous of telling the truth to the court. Reliance is made on 1984 SCMR 560.

3. In such circumstances, the request is accepted. PW-02 is declared hostile witness with permission to prosecution to cross-examine him.

4. Notice be issued to PW-02 for 09/01/2025. The remaining PWs be also summoned for the date fixed. Accused Meeran Shah be produced on the date fixed.

6. The propose legal preposition for the determination of this court in the instant case is that under what circumstances and at what stage, a witness can be declared hostile. Before this court proceeds, to dilate upon the ibid preposition, it would be worthwhile to have a look at relevant provisions of Qanun-e-Shahadat Order, 1984, which are as under:- Article

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-examinations and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine that matter. Article

150. Question by party to his own witness. The Court may, in its discretions, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. Article

151. Impeaching credit of witness. The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him. (1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit; (2) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence; (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;

7. From the above quoted provisions of law, it is crystal clear and obvious that a statement of a witness is the combination of examination-in-chief as well as cross-examination and read as a whole in evidence.

8. Now coming to the legal preposition. The ibid preposition remained under consideration before the superior courts from time to time. The august apex court while dilating upon the preposition has laid down the criteria for declaring a witness as hostile in the case reported as Muhammad Boota and another v. The State and another (1984 SCMR 560) in the following manner:- A witness who is unfavourable is not necessarily hostile, for a hostile witness is one who from the manner in which lie gives his evidence, shows that he is not desirous of telling the truth to the Court; that the witness's answer to certain question is in direct conflict with evidence of other witnesses and is not and can never be a reason for allowing the witness to be treated as hostile and permitted to be cross-examined. However, section 154, Evidence Act in no way fetters the discretion of the Court to permit leading questions to be put by a party to his own witnesses; the Court has unfettered discretion to allow the prosecutor to cross-examine the prosecution witnesses.

9. On the touchstone of the ibid judgment, this court has to see the status of a witness. The nature of hostile witness is distinct with that of unfavourable witness. A witness can be termed to be a hostile witness who resiles from his earlier statement, so given during investigation, and record his court statement against the truth which indeed damages the entire prosecution case while on the other hand, a witness can be termed to be an unfavourable witness, whose statement may against the interest of the prosecution but without any intention of hostility which certainly does not damage the entire prosecution case.

10. In criminal jurisprudence, the veracity and accuracy of a prosecution witness during examination-in-chief can only be tested through cross-examination, which indeed is a valuable right of an accused so as to extract any fact which may favourable to him. A witness can be declared as hostile witness but only and only when he during examination-in-chief deviates from his earlier statement / stance and not during cross-examination. If, during the course of cross-examination, the testimony of a prosecution witness is shattered, certainly that would not provide any right to the prosecution to request for declaring the said witness as hostile in terms of Article 150 of the Qanun-e-Shahadat Order, 1984. The right of cross-examination of defence is very valuable right and if the witness in cross-examination makes a statement which creates doubt qua the truthfulness of prosecution case, the benefit of such doubt is always given to the accused and cannot be withheld in favour of prosecution. At the time of recording the examination-in-chief, a prosecution witness is always at the hands of the prosecution, however, once such examination-in-chief is completed, then, he goes into the hands of the defence for cross-examination. Given that, in terms of Article 150 of the Qanun-e-Shahadat Order, 1984, the prosecution can request the trial Court to declare a witness as hostile if he resiles from his previous statement but simultaneously, the Court before acceding to such request is to satisfy itself with respect to availability of the elements of hostility and untruthiness after applying its judicial conscious / mind to the facts and circumstances of the case. This court believes that hostility is a term which is relevant to the statement in examination-in-chief and if a witness is allowed to be cross-examined by the prosecution after the cross-examination by the defence, the whole purpose of right of cross-examination of defence in the concept of criminal administration of justice and law of evidence would be defeated. Moreover, if at all, such like requests of the prosecution to cross-examine its own witnesses and that too in narcotics cases like the instant one are acceded to in frequent manner, then, this court understands that it would certainly redundant the very purpose of cross-examination. Even despite declaring a witness to be a hostile witness, still his testimony cannot entirely be washed out rather that part which corroborates the prosecution version can still be taken into consideration. Rel. Riaz v. Mst. Raeela and others (2022 PCr.LJ (Peshawar) 14721 and Faisal Khan v. State (2022 YLR (Peshawar) 1341).

11. The ibid provision of law also came up for hearing in the case of State of Bihar v. Lalu Prasad alias Lalu Prasad Yadav (AIR 2002 SC 2432), wherein, the Indian Supreme Court has also elaborately answered this issue as following:- "

5. Nonetheless a discretion has been vested with the Court whether to grant the permission or not. Normally when the public prosecutor request for permission to put cross questions to a witness called by him the Court used to grant it. Here if the public prosecutor had sought permission at the end of the chief-examination itself the trial Court would have no good reason for declining the permission sought for. But the public prosecutor did not do so at that stage. That is precisely the reason why the trial Judge declined to exercise his discretion when the permission was sought for after the cross-examination was over. The witness has said only the details in cross-examination regarding the matter which he said in the chief-examination itself. It would have been a different position if the witness stuck to his version he was expected to say by the party who called the witness, in the examination-in-chief by he showed propensity to favour the adverse party only in cross-examination. In such case the party who called him has a legitimate right to put cross questions to the witness. But if he resiled from his expected stand even in chief-examination the permission to put cross questions should have been sought then."

12. In the case in hand, the PW-2 being a seizing officer during the course of cross-examination in response to certain questions has given some answers which are raising queries upon the mode and manner of the occurrence but the same is not in manner which calls for declaring him as hostile, hence, the learned trial court has not properly appreciated the entire material available on the record in its true perspective and also not applied its judicial mind while handing down the impugned findings. Being so, this court believes that the petitioner has succeeded in making out a case for the interference of this court in its revisional jurisdiction. In this view of the matter, this court is left with no option but to allow this revision petition.

13. For the reasons discussed above, this court admits and allows this revision petition, set asides the impugned findings and in turn directs the learned trial court to proceed with trial of the accused and decide the same as expeditiously as possible in the larger interest of justice. JK/216/P Revision allowed.