1998 PLP 1148 (CLC)

Inayat Ullah, through this revision petition, disputed the vires and legality of the order, dated 13‑11‑1997 passed by the District Judge, Bahawalnagar, whereby he allowed the plaintiff Riaz Ahmad to cross‑examine his own witness Muhammad Anwar.

2. The brief facts leading to this revision petition are that Riaz Ahmad (respondent‑plaintiff) filed a suit under Order XXXVII, Rule 2, C.P.C. for recovery of Rupees three lac (Rs.3,00,000) against Inayat Ullah (petitioner/ defendant) on the basis of pronote, dated 5‑5‑1994. Inayat Ullah, inter alia, denied the execution of the said pronote and resultantly 8 issues were framed. The plaintiff examined Muhammad Anwar, petition‑writer, as P. W.1, who during cross‑examination supported the version of the defendant as contained in the written statement, which necessitated the request for permission to cross -examine the said witness. The request was opposed by the defendant but finally allowed through the impugned order.

3. The learned counsel for the petitioner referred to the case of Sohrab Khan v. Abdul Jalil and 2 others (1979 CLC 62) and submitted that a witness could not be declared hostile simply because he made a statement against the party producing him. The relevant observations in Sohrab Khan's case are as under:‑‑‑ "The contentions raised on behalf of the appellant are devoid of force. The Rent Controller himself has dealt with the request made for declaring Haji Abdul Rahim the witness of the appellant as 'hostile'. The witness cannot be declared 'hostile' merely because he has deposed against a party. If a party chooses to produce a witness, it has to bear the consequences thereof. It cannot be said that a witness is not deposing truly if he deposes against a particular party."

4. The learned counsel for the respondent, on the other hand, submitted that Muhammad Anwar P.W. had suppressed the truth and was not making a truthful statement when he made a controversial statement in cross‑examination. According to him, the learned trial Judge rightly allowed the cross‑examining of the witness. In support of his contention, he relied upon the case of Ghulam Ahmad and others v. Mst. Rabia Bibi and others (PLD 1970 Azad J & K 1), wherein it was held as under:‑‑‑

"Latter interpretation of law has not only simplified the matter but has brought greater reasonableness and logic to bear upon it. It is now settled law that the witness even after being impeached by the very party producing him, does not, for that matter, become unreliable and that the parties are at liberty to reply upon his statement in support of their respective pleas and the Court is also at liberty to treat his statement on the same level as it treats other witnesses." And again it was observed:‑‑‑ "In the light of this state of law to hold that a party can be allowed to cross‑examine his witness only when it appears to the Court that 'he not desirous of telling the truth', would clearly appear to be rigid and inflexible. It would also amount to pre judging the credibility of the witnesses at a stage where the Court ought, in the best tradition of justice, to withhold its opinion. In every case the main question before a Court is to discover the truth from the conflicting pleas of the parties before it. The award of relief or punishment consequently follows. Whenever a party seeks to declare his witness hostile to use the commonly used term, the witness is either deposing to facts or suppressing facts which either support the opponent or conversely which negative the claim of his producer. To expect the Court therefore, to determine, even cautiously but nevertheless to determine, as to what the truth is, for unless a Court determines what the truth is, how can it determine that the witness was not desirous of telling truth, would to my humble thinking, amount to an indiscretion unlikely to create confidence in the litigant populace. One cannot do better than to quote Roland, J. who said in AIR 1933 Patna 517:‑‑‑ 'The definition that a hostile witness is one who is not desirous of telling the truth is dead and buried and must be forgotten.' And it was also held:‑‑‑ "When a witness makes a statement adversely affecting the party producing him, it assumes great importance and may be treated by the Court as an omission on the part of the party itself. Therefore, if the party who produced him, desires to put him questions in the nature of cross‑examination, it does not ask for the moon. If he is to be tied to the admissions made by such a witness and if ultimately as often happens, the fate of his case is to hang upon his admissions, then in all fairness to him, he should be permitted to put him questions in the nature of cross‑examination so that he may get an opportunity of bringing on record any material on the basis of which he may persuade the Court not to rely upon his evidence. " In the case of Emperor v. Haradhan (AIR 1933 Patna 517) their Lordships made following observations:‑‑‑ "These words of the Judicial Committee deserve careful perusal; they fully support two inferences: first that to obtain leave to cross- examination all that is necessary is that the witness's testimony should have been adverse to the party calling him; and second that the value of the witness's testimony is to be judged in the light of the results of such cross‑examination. "

5. All the abovementioned judicial pronouncements are the interpretation of section 154 of the Evidence Act, 1872, since repealed. It has been re‑enacted in the shape of Article 150 of the Qanun‑e‑Shahadat Order, 1984, which reads as under:‑‑‑ "

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

6. A simple perusal of Article 150 shows that:‑‑‑ (i) it is not necessary to declare one's own witness as hostile, (ii) any question can be put to such a witness which night be put in cross examination by the adverse party, and (iii) to permit putting such question is within the discretion of the Court.

7. In the case in hand, Muhammad Anwar (P.W.1), proved the execution of promote Exh.P‑1 and the receipt Exh.P‑2, but in cross‑examination he made a contradictory statement that the pronote was executed regarding certain payments between the plaintiff and the son of the defendant. He made a statement out of the context and contradictory to what he stated in examination -in‑chief. If it was regarding a dispute of payments why he scribed the pronote and receipt containing a recital of cash payment. The learned trial Judge rightly allowed the witness to be cross‑examined by the plaintiff in this regard, which would enable the Court to assess the evidence value of his statement. The right to allow a party to cross‑examine a witness of his own is discretionary and this discretion is to be exercised judiciously. Obviously, the discretion when once exercised by the Trial Court, cannot be ordinarily reviewed by the Appellate I Court. Article 150 of the Qanun‑e‑Shahadat Order, 1984 confers on the Court a : wide description, and it seems that the Court will be justified in allowing a party calling a witness to put such questions to him as might be put in cross -examination by the adverse party, where the evidence given by the witness is unfavourable to the party calling him, or is contrary to the evidence which the witness was expected to give. In such a case, the Judge should permit such statements to be tested by cross‑examination if the evidence is to be relied upon. However, the permission to cross‑examine a witness should not be given to the party calling the witness when the object of such cross‑examination is to cover up the lacunae in the evidence. The upshot of the above discussion is that there is no illegality or material irregularity in the impugned order justifying the interference of this Court in the exercise of revisional jurisdiction. Resultantly, this revision petition fails and is dismissed with no order as to costs. A.A./I‑49/L Revision dismissed.