2005 P Cr (PLP)

Ss.161, 435 & 439

Fxamining Investigating Officer first

Grievance of applicant was that Investigating Officer had been examined prior to 13 other prosecution witnesses and that Trial Court had given its mind that once Investigating Officer was examined, applicant would not be allowed to recall Investigating Officer even on making of application

Investigating Officer normally was examined in last in order to give accused opportunity to confront prosecution witnesses or their testimony with 161, Cr.P.C. statements recorded by investigating Officer during investigation

No prejudice would be caused to the either party if Investigating Officer, who was examined before other prosecution witnesses, was recalled on application of accused

Trial Court could examine witnesses in order of precedence as the prosecution intended to, but if Investigating Officer was allowed to be examined prior to other prosecution witnesses, applicant would have the right to make appropriate application on conclusion of prosecution evidence for recalling Investigating Officer in order to confront him with evidence of prosecution witnesses recorded by him under S.161, Cr.P.C.

Law did not debar applicant from making such application if need would so arise

Direction was given to Trial Court that applicant would have right to recall Investigating Officer for the purpose of confronting him with evidence of prosecution witnesses with 161, Cr.P.C. statement recorded by him. Shaukat H. Zubedi for Applicant. Sadaruddin Qureshi for A.-G. for the State. Date of hearing: 4th August, 2004. Learned counsel for the State concedes to the proposition that in the normal course the Investigating Officer is examined in the last but there is no bar in law to examine the Investigating Officer before other prosecution witnesses are examined and it is within the domain of the party leading evidence to chose the order of precedence of its witness. However, in criminal trial the Investigating Officer is examined normally in last in order to give the accused opportunity to confront the prosecution witnesses or their testimony with the 161, Cr.P.C. statements recorded by the Investigating Officer during investigation. There is no prejudice caused to either party if the Investigating Officer, who is examined before other prosecution witness, is recalled on application of the accused. The grievance of the applicant appears to be that the Investigating Officer has been examined prior to 13 others prosecution witnesses and the learned trial Court has given its mind that once the Investigating officer is examined the applicant will not be allowed to recall the Investigating officer even on making of such application. According to the learned counsel for the applicant that if the applicant is denied the opportunity of recalling the Investigating Officer in order to confront him with the evidence of the prosecution witnesses and statements under section 161, Cr.P.C. recorded by him, it will be unjust. The trial Court may examine the witness in order of precedence as the prosecution intends to but at the same time, if the Investigating Officer is allowed to be examined prior to other prosecution witnesses the applicant shall have the right to make appropriate application on conclusion of the prosecution evidence for recalling the Investigating Officer in order to confront him with the evidence of prosecution witnesses with the 161, Cr.P.C. statements of the prosecution witnesses recorded by him. The law does not debar the applicant from making such application if need so arises. This criminal miscellaneous application along with the listed application is disposed of with the direction to the trial Court that if the prosecution witnesses are examined subsequent to the examination of the Investigating Officer, the applicant shall have right to recall the Investigating Officer for the purpose of confronting him with the evidence of the prosecution witnesses with the 161, Cr.P.C. statements recorded by him. H.B.T./M‑142/K Order accordingly.