2010 PLP 560 (GBLR)

MUHAMMAD NAWAZ ABBASI, C.J.

This Criminal Petition for Leave to Appeal has been preferred against the order dated 9-8-2010, passed by the Chief Court by virtue of which Criminal Revision filed by the State against the order of the trial Court regarding refusal of permission to the prosecution to cross-examine the witness was allowed.

2. The brief facts in the background leading to this criminal petition for leave to appeal are that Afsar Jan (P.W.6) an eye-witness and first informant of a case under sections 302/324/34, P.P.C. in which petitioners are facing trial, during cross-examination made answers to the certain question put to him by the learned defence counsel adverse to the interest of prosecution, whereupon learned Deputy District Attorney sought permission from the trial Court to cross-examine the witness by declaring him hostile which was denied.

3. The case of the prosecution was that if a witness having supported the prosecution in his examination-in-chief in line with his statement recorded by Police under section 161, Cr.P.C. gives dishonest concession in favour of the accused in cross-examination, he is considered a hostile witness and prosecution can cross-examine such witness as of right.

4. The defence opposed the request of prosecution with the assertion that purpose of cross-examination is to dig out the truth of the matter to bring on record the true facts and if the prosecution is allowed to cross-examine the witness after cross-examination by defence the whole purpose of cross-examination in Qanoon-e-Shahadat Order, 1984 is negated. In nutshell, the defence case was that law is not in favour of declaring a witness hostile after the cross-examination by defence and prosecution cannot be given permission to cross-examine the witness to undo the effect of benefit arising in favour of accused out of cross-examination of witness by the defence.

5. The learned trial Judge having considered the matter in the prospect of law on the subject rejected the request of the Prosecution vide order dated 26-4-2010 and State being aggrieved of this order filed a criminal revision petition under section 439, Cr.P.C. before the Chief Court which succeeded and Chief Court vide impugned judgment allowed the cross-examination of witness with the observation that the purpose of examination and cross-examination of a witness is to uncover the truth whereas the witness in the present case, having made dishonest concession in favour of accused in cross-examination by defence has suppressed the truth for the benefit of accused. The petitioners have challenged the judgment of the Chief Court before this Court through the present petition.

6. The learned counsel for the petitioners contended that if a prosecution witness is declared hostile during the cross-examination by the defence for the reason that he has made a statement favourable to an accused, not only the purpose of cross-examination is negated but the concept of law of evidence on the subject is also set at naught. The learned counsel placing reliance on the basic principle of criminal administration of justice, that "law cannot be stretched in favour of prosecution and even a slight doubt arising out of the prosecution evidence must he extended to the accused". Contended that the Chief Court in the present case, having passed the Order in conflict to the fundamental principle of Criminal Law has not only undone the effect of the benefit of doubt if any, arising in favour of accused out of the statement of the witness in cross-examination but also caused serious prejudice to the case of defence on merits before the trial Court.

7. Learned Advocate General assisted by learned counsel for the complainant opposing this petition has submitted that the Court may in the interest of Justice, declare a witness hostile at any stage during his examination-in-chief or cross-examination as the examination and cross-examination as a whole is statement of a witness and since the order passed by Chief Court was quite in accordance with law, therefore, the same would not call for interference of this court. The learned Advocate General submitted that in any case the petitioner instead of agitating the matter before this Court, may take benefit of doubtful credibility of the statement of witness before the trial Court at proper stage.

8. We have heard the learned counsel for the parties at length and have also considered the matter in the light of relevant provision of Qanoon-e-Shahadat Order, 1984. The examination of a witness by the party which calls him is called examination-in-chief and examination of the witness by the adverse party is his cross-examination. The statement of a witness consists upon examination-in-chief and cross-examination and also re-examination if any. The right of cross-examination of a prosecution witness by the defence is very valuable right conferred by law in relation to the relevant facts stated by a witness in his examination-in-chief which is not only confined to the testimony of witness in examination-in-Chief, rather defence may put any relevant question to the witness in cross-examination to impeach his credibility. It is settled principle of criminal administration of justice that after cross-examination of a witness by the defence, the court may permit re-examination of a witness if consider proper and necessary on a material question which has been omitted by the prosecution to bring on record in / his examination-in-Chief but the prosecution is not allowed to cross-examine the witness after cross-examination of defence in respect of the facts narrated by him either in his examination-in-chief or cross-examination. The order of examination-in-Chief and cross-examination of a witness is laid down in Section 133 of Qanoon-e-Shahadat Order, 1984 as under: -

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. The plain reading of this provision would show that the party which calls a witness may cross-examine him if he suppresses the truth in his examination-in-chief and may also re-examine such witness if a material fact has been omitted to bring on record in his examination-in-chief but the party calling a witness cannot cross-examine his own witness after cross-examination by the adverse party to impeach the credibility of his statement in cross-examination on any ground including the ground that witness in cross-examination has made a contradictory statement adverse to the interest of prosecution.

9. The, court may under Article 150 of Qanoon-e-Shahadat Order, 1984, in its discretion permit the party which calls a witness to the witness box to put any question to him which might be put in cross-examination by the adverse party, if the witness during examination-in- chief deliberately concedes or suppress a fact and such witness is a hostile witness in terms of Article 150 of Qanoon-e-Shahadat Order, 1984 which provides 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 party. The credibility of a witness can be impeached by the party who calls the witness or by the adverse party under Article 151 of Qanoon-e-Shahadat Order, 1984 as under: -

151. Impeaching credit of witness.--The credit of a witness may be impeached in the following ways by the adverse party, 1 or, with the consent of the Court, by the party who calls him: - (1) by the evidence of person 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; (4) when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character. The adverse party subject to Qanoon-e-Shahadat Order, 1984, may put any question to witness to impeach his credibility and court may also allow the party which calls the witness to impeach his credibility by cross-examination if the witness suppresses truth in examination-in -chief.

10. The Court at any stage in order to get the particular fact explained or remove the doubt if any in respect of a fact of its own or on request of a party may recall a witness for re-examination, if dictate of justice and equity so requires but no such permission can be given to either party to fill in lacuna in the case or cover a gap in the evidence adverse to the interest of other party. The Court may exercise the power of recalling a witness for re-examination if is of the view that recall and re-examination of a witness is necessary for just decision of the case to meet the ends of Justice. The law having taken care of the situation in which an ambiguity is created in the statement of a material witness, has empowered the court under section 540, Cr.P.C. to recall a witness for re-examination and permit the adverse party to cross-examine the witness after re-examination as under:- "

540. Power to summon material witness or examine persons present.

Any Court may, at any stage of any inquiry, trial or C other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.

11. The careful examination of the above provision of law would clearly show that the examination-in-chief and cross-examination is statement of a witness which as a whole is read in evidence. This is settled principle of criminal administration of justice and law that if a witness in examination-in-chief makes a statement adverse to the interest of the prosecution, the court may on the request of prosecutor declare the witness hostile and permit him to exercise the right of cross-examination-of the witness but there is no concept of declaring a witness hostile during his cross-examination by the defence. The right of cross-examination of defence is very valuable right and if the witness knowingly or otherwise 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. The 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 and provision of Articles 133 and 151 of Qanoon-e-Shahadat Order, 1984 relating to the examination and cross-examination of a witness and impeachment of his credibility would be negated. It is clear in the c above provision of law that Court may permit the prosecution to impeach the credibility of statement of its own witness, if, the statement made by a witness in examination-in-chief is in deviation to his previous statement or the statement is adverse to the interest of prosecution, but no such permission can be granted to the prosecution on the basis of averment of the statement of witness in cross-examination by defence. The logic of law is not in favour of grant of permission to the prosecution to cross-examine a witness after cross-examination of defence, to impeach the credibility of his statement made by him in cross-examination.

12. In the light of foregoing discussion, we convert this petition into an appeal and by upholding the Order of trial Court set aside the judgment of the Chief Court. The appeal is accordingly allowed. H.B.T./32/Glt Appeal allowed.