P L D 1953 Baluchistan 15 (PLP)

R. K. M. SAKER, J, C: ‑This is a reference under the provisions of section 438, Cr. P. C. from the Sessions Judge in Baluchistan to set aside a certain order by the Senior Sub‑Judge and Magistrate First Class, Quetta, on the grounds that the views expressed by the Magistrate are erroneous. Briefly the facts of the case are that a certain prosecution witness in a criminal case was re‑called by the accused for further cross‑examination, During the course of his cross‑examination it was alleged by the Prosecuting Inspector in the Trial Court that the witness had given a different version in his evidence from that given when examined before the charge was framed. A request was, therefore, made to the Trial Court that as the witness had turned hostile, the Prosecuting Inspector should be allowed to cross‑examine him under the provisions of section 154, Evidence Act. Learned Magistrate refused to request on the grounds that after a charge had been framed further cross‑examination of a prosecution witness by an accused is par, of the latter's defence anti also that since the prosecution witness had been summoned by the defence for further cross‑examination the provisions of section 154 of the Evidence Act did not apply, ‑as it was the accused who had called the witness and not the prosecution. The learned Public Prosecutor has mainly relied on the general principle that the character of a witness does not change when he is re‑called for further cross‑examination either under .the provisions of section 256 or section 257 of the Cr. P. C. and further that he learned Magistrate was incorrect in stating that when a prosecution witness is re‑called by an accused that witness becomes a defence witness. Learned counsel, who appeared for the respondent, contended that as soon as the charge is framed against an accused person he enters upon his defence and as a result a prosecution witness re‑called by him becomes a witness in his defence. He further contended that section 154, Evidence Act lays down that only a person who calls the witness can be permitted to cross‑examine. There appears to be some confusion of thought over the proper and correct interpretation of section 154 of the Evidence Act. In my view, the correct interpretation of the meaning of the words "the person who calls" is that they are intended to apply to whatever person first calls the witness to give evidence on his behalf, If this section were capable of any other interpretation such as is urged by learned counsel for the respondent, it would have been worded in a different manner by providing specifically for the case of a witness re‑called by the opposite party. I am in entire agreement with the views expressed by the learned Public Prosecutor that the character of a witness cannot change. If a person has once been called to give evidence as a prosecution witness, it is entirely immaterial whether the accused re‑calls him for cross‑examination or not, for he must, for all times, remain a prosecution witness. In the case before me the witness concerned was in the first place called by the prosecution. His character has never changed by virtue of the fact that he was re‑called by the accused for further cross‑examination and it is therefore clear that section 154, Evidence. Act can be brought into use in a case of this nature. The position is made further clear by a study of the provisions of section 256, Cr. P. C.; the first part of which is reproduced below :‑ "If the accused refuses to plead; or does not plead, or claims to be tried, he shall be required to state, at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross‑examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken. If he says be does so wish, the witnesses named by him shall be re‑called and, after cross‑examination and re‑examination (if any), they shall be discharged. The evidence of any remaining witnesses for the prosecution shall next be taken; and, after cross‑examination and re‑examination (if any), they also shall be discharged. The accused shall then be called upon to enter upon his defence and produce his defence." From the procedure, which is required to be adopted, it is clear that while the accused has the right to re‑call any prosecution witnesses for further cross‑examination, the prosecution is still at liberty to produce further witnesses to give evidence on their behalf, and that after the entire case for the prosecution has been completed the accused is then called upon to enter upon his defence, It follows therefore, as a matter of course, that it would be an incorrect interpretation of the law upon the subject if I were to hold that the accused enters upon his defence as soon as the charge has been framed, for it must of necessity follow that in conformity with the provisions of section 256, Cr. P. C. the case for the prosecution must first be completed before the accused enters upon his defence. In the light of these circumstances I am unable to subscribe to the proposition which has been laid down by the learned Magistrate in this respect. The witness concerned is a prosecution witness; his character does not change by virtue of the fact that he is re‑called for further cross‑examination at the request of the accused; and finally, the stage at which the accused enters upon his defence is clearly defined in section 256 of the Cr. P. C., namely that when the case for the prosecution is closed. It will be then the responsibility of the accused to enter upon his defence. In the light of these circumstances I accept the reference of the learned Sessions Judge and set aside the order of the learned Magistrate. The file will be returned to the trial Court for dis posal in accordance with law. Parties present. Order announced. A. H. Reference accepted.