2001 PLP 307 (MLD)

Syed Ihsan Qadir Shah for Respondents. Mansoor Ahmad Mian for the State. Date of hearing: 20th October, 2000. Lengthy arguments have been advanced by learned counsel for the parties. According to the petitioner i.e. the learned counsel for the complainant during cross‑examination of the doctor has made a statement which is vague and is intended to help the accused‑persons to demonstrate that Mumtaz injured was being examined when the dead body of Nadeem Chaudhry was brought in the hospital for post‑mortem examination. He has also expressed his apprehension that an attempt has been made to create an impression that Fayyaz and Shahbaz were being examined during the Hangama. According to the prosecution Fayyaz and Shahbaz participated in the Hangama and they were creator of the same.

2. The learned trial Judge after hearing arguments of the parties observed that the ambiguity can be resolved by subjecting the witness to re examination. The learned trial Judge had not denied that a witness if makes certain uncalled for concession during cross‑examination and brings on record some material which is extraneous to the matter in issue can be subjected to cross‑examination by the prosecution but for that they have to show that the same had been done with some mala fide intention., but according to learned trial Judge such malice was not visible or apparent, therefore, he observed that the ambiguity, if any, can be clarified through re‑examination. The order to this extent does not suffer from any illegality or infirmity. However, the learned counsel for the petitioner, according to him, genuinely apprehends that the witness may extend more concession to the accused‑persons and that would further damage his case. This situation has not arisen so far. If during re‑examination the witness makes some conceding statement with mala fide intention, the petitioner may repeat his application and the learned trial Judge will consider the same on its merits and if he feels that the same has been made with mala fide intention, he may permit the cross-examination of the witness.

3. The scheme of examination of witnesses had been detailed in sections 133 and 150 of the Qanun‑e‑Shahadat Order, 1984 which are reproduced as under:‑‑ "(133) Order of Examination.‑‑‑(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 witnesses testified on his examination‑in‑chief. (3) The re‑examination shall be directed to the explanation of matters referred to in cross‑examination and, if new matter is, by permission of the Court, introduced in re‑examination, the adverse party may further cross‑examine that matter. (150) Question by party to his own witness. ‑‑‑‑The Court may, in its discretion permit the person who calls a witness to put any questions to him which might be put in cross‑examination by the adverse party. In case any ambiguity crops up during cross‑examination which needs clarification or elucidation then witness can be re‑examined with the permission of the Court. The order of examination as prescribed in the Order is meant to elicit true facts from the witness, the party at whose instance the witness has been produced will of, course, examine him and as such put forth its case. Thereafter, to test the credibility or veracity of the witness, the adverse party has been granted the right of cross‑examining him. As noted above, if some ambiguity or confusion has arisen during the cross-examination, the party can re‑examine the witness and if some new fact has been introduced then the adverse party can cross‑examine him further. The examination‑in‑chief, cross‑examination and re‑examination all make one statement. The whole exercise is undertaken to extort truth so that complete justice may be dispensed with. During course of the statement, if a witness produced by the‑prosecution deviates from the true facts and the same are being suppressed in order to extend concession or due to some other ulterior motive, the Court can permit the party to cross‑examine its own witness. Considering the rationale underlying section 150, the principle should be made applicable to the statement made during re‑examination as well. It is possible that during the course of re‑examination a witness while clarifying or elucidating a fact may suppress the truth or state something which appears to be palpably false or self‑contradictory or for some allied reasons then permission can be sought to cross‑examine that witness. In the instant case, as observed above, apprehension has been expressed that during re examination the witness may extend some more concession to accused party with a view to create dents in the prosecution version. If the same is done and it is satisfactorily demonstrated to the Court, the witness may be allowed to be cross‑examined in the interest of justice. This revision petition is, therefore, disposed of with these observations. N.H.Q./Z‑32/L Order accordingly.