2005 P Cr (PLP)

‑‑‑‑Ss. 540 & 162‑‑‑Penal Code (XLV of 1860), Ss.324/353/34‑‑‑Use of previous statement in evidence ‑‑‑Given up prosecution witness if examined under S.540, Cr.P.C. can be confronted' with his police statement in terms of S.162, Cr.P.C. Jewan and others v. The State 1980 PCr.LJ 570 ref. Ch. Zafar Iqbal for Petitioners. Ch. Muhammad Hanif Khatana, Addl. A.‑G. for the State. Mirza Aziz‑ur‑Rehman assisted by Miss Nosheen Taskeen for Respondents. Date of hearing: 11th October, 2004. In continuation of my order, dated 17‑9‑2004 learned counsel for the petitioner submits that though the prosecution can cross‑examine the Court‑witness but they have no right to get their statements confronted as required under section 162, Cr.P.C. He has relied upon PLD 1957 Lah. 519 titled as Ghulam Haider v. The State.

2. On the other hand learned Additional Advocate-General submits that Court-witness can be confronted with his previous statement by the complainant party at the time of occurrence under Article 140 of Qanun -e‑Shahadat, 1984. He further submits that the complainant party cannot be restricted by the learned trial Court not to get the statements of Court- witness be confronted with their previous statements. He further submits that cross‑examination is necessary to bring the truth on the record. SR that the justice may be done with both the parties.

3. Learned counsel for the respondents on the other hand submits that when a party is given a right to cross‑examine the witnesses then he has also a right to get his statement confronted with his previous statement recorded under section

161. Cr.P.C. and the said statement will not be hit by section

162. Cr.P.C. Learned counsel for the respondents have relied upon 1980 PCr. LJ 570 and 1980 PCr.LJ 128.

4. I have heard the learned counsel for the parties. For the just decision of the case the facts of the case are necessary to be given. Tahir Waheed S.‑I./S.H.O. Police Station Chak Bedi, District Pakpattan, lodged a case F.I.R. No.170 of 2003 registered under sections 324/353/34, P.P.C. on 2‑7‑2003 against Khadim Hussain, Riaz alias Riazi and Hussain alias Hasni. In the said case Riaz alias Riazi and Hussain alias Hasni also lost their lives in the police encounter. Later on Mst. Fatima Bibi mother of Hussain alias Hasni filed a complaint against Tahir Waheed, S.-I/S.H.O. and four other police officials before the learned Additional Sessions Judge, Pakpattan Sharif, who after recording the preliminary evidence summoned them. Now learned trial Court is following the law laid down in PLD 1966 SC 708 a famous Noor Elahi's case. It is correct that the complainant or the public prosecutor cannot confront the statement of the witnesses recorded under section 161, Cr.P.C. mentioned in the calender of witnesses because there is complete bar under section 162, Cr.P.C. but in the instant case the situation is that about the murder of two persons there are different versions, one by Tahir Waheed respondent No. 1 and the other by Mst. Fatima Bibi mother of Mst. Hussain alias Hasni. In view of the dictum laid down in PLD 1966 SC 708 the witnesses mentioned in the calendar of witnesses of challan case are being examined by the learned trial Court as Court- witnesses and are also being cross‑examined by the learned-counsel of Mst. Fatima. The question arose whether they cannot be confronted with their previous statements recorded under section 161, Cr.P.C. In such like situation this Court is of the opinion that the truth is to be elucidated from the witnesses. In police encounter two persons have lost their lives. All the witnesses are police officials including the complainant Tahir Waheed, S.‑I. This Court gets light from a D.B. judgment which has been cited by the learned counsel for the respondents. Reported as 1980 PCr.LJ 570 titled as Jewan and others v. The State. For ready reference, I would, like to reproduce the follow in passage from the said judgment as under:‑‑ "Term, "Court‑witness", "generally" associated with section 540, Cr.P.C. is not a term of art. Under the first part of the section, Court may at any stage of any inquiry, trial ... 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 under second part, Court is obliged to summon and examine or recall and re‑examine such person, it his evidence appears to it essential to the just decision of the case. Provisions of section 540, therefore, cannot be so interpreted as to defeat other provisions of the Code. A witness, notwithstanding that he is called and examined or recalled or re‑examined under section 540, Cr.P.C. retain his character as a prosecution or a defence witness as the case as the case may be. He will be a Court‑witness simpliciter if he was cited neither a prosecution nor a defence witness. I am, therefore, inclined to hold that a given up prosecution witness if examined under section 540, confronted with his police statement in terms of Cr.P.C. can be section 162, Cr.P.C."

5. After having heard learned counsel for the parties and going through this esteemed judgment, I uphold the order passed by the learned trial Court. Resultantly, this petition is dismissed. N.H.Q./T‑78/L Revision dismissed.