2022 M L D 1740
Summoning of witnesses---Scope---Application filed by complainant for summoning of witnesses who had already been examined was declined---Validity---Complainant intended to re-examine/cross-examine some of the important prosecution witnesses i.e. Investigating Officer, ASI and Inspector---Admittedly, said witnesses had been examined and cross-examined---Application for recalling said witnesses was moved after considerable delay---Complainant had shown his anxiety regarding some portion of the deposition of the said witnesses as such he intended to cross-examine them on that particular portion of their evidence---Under the provision of Art.150 of the Qanun-e-Shahadat, 1984, the Trial Court might permit a party to cross-examine his own witness but for invoking the said provision, such permission must be sought at the very time when the witness was still under oath and had deposed something contrary to the interest of the party who had produced him---If the court considered that the witnesses was speaking the truth and he was not deposing in a twisted manner and contrary to his previous statement proposefully, then the court might refuse to allow such a request---In the present case, the application was moved after weeks even months of the examination of the witnesses, as such, it was not considerable---Case of the complainant was that some important prosecution witnesses during recording of their evidence had given testimony, which was inconsistent with the interest of the complainant---In such a situation, a prosecution witness could not be impeached by declaring him hostile and permitting the counsel for the complainant or even the public prosecutor to cross-examine the said witness---Prosecution and complainant could only be justified in seeking the impeachment of a prosecution witness when during his examination-in-chief or cross-examination, he had given testimony, which was inconsistent with some previous statement by him---In the present case, the investigator and the other official witnesses had not deposed anything, which was inconsistent with any of their previous statement, as such it would not be justified to subject them to cross-examine by the complainant or public prosecutor---
Hostile witness---Scope---Nevertheless, in every case when a request was made for cross-examining a prosecution witness after declaring him hostile, it was under the discretion of the Trial Court to allow or disallow such a request---Article 150 of the Qanun-e-Shahadat, 1984, laid down that the Court might, in its discretion, permit a person who called a witness to put any question to him which might be put in cross-examination by the adverse party---No doubt, the credit of a witness could be impeached by the adverse party but if a party intended to impeach his own witness, the same could only be done with the permission of the Court.
ORDER
FAHIM AHMED SIDDIQUI, J.----This Criminal Revision Application is filed to question the legality of the order dated 07-8-2020 passed by learned Ist Additional Sessions Judge, Ghotki, in Sessions Case No. 510/2013. Through the impugned order, the learned trial judge has declined to entertain an application filed by the applicant/complainant under section 540, Cr.P.C., and refused to recall some witnesses who have already been examined.
2. Concisely, the facts are that complainant Wajid Ali Shah lodged FIR regarding the murder of his son Saqib Shah. Allegedly, accused Zubair Ahmed Chachar used to ply his motorbike speedily with noisy horns, hence annoyed with the deceased son of the complainant, as he was restraining him to do so. In the night-time of the day of the incident, the aforementioned accused with his nominated associates entered in the home of the deceased and fired upon him at his temporal region in front of the complainant and other witnesses. After the incident, the accused persons decamped from the scene of offence while making aerial firings for creating harassment. After requisite formalities, the dead body of the deceased was buried. Allegedly, during post burial ceremonies, the relatives and friends of accused persons came to the complainant party and consoled them for settlement and compensation due to which the complainant partly remained calm. However, later on, the accused persons refused to a settlement and compensation, as such the FIR was lodged after getting a direction from the ex-officio Justice of Peace.
3. After lodgement of FIR, the investigation was carried out and after cognizance by the concerned magistrate, the case was entrusted to Additional Sessions Judge-I (MCTC). During the trial, all the prosecution witnesses were examined but since some of the official witnesses have deposed contrary to the interest of the complainant party; therefore, the complainant filed an application under section 540, Cr.P.C. read with Article 150 of Qanun-e-Shahadat Order, 1984. Through the said application, the complainant intended to recall and cross-examine those official witnesses by declaring them hostile but the said application was declined by the trial Court through the impugned order, as such the instant criminal revision application was filed.
4. Mr. Anwar Ali Lohar appearing for the applicant submits that the complainant has every right to cross-examine a witness who has deposed against him. He submits that the investigation officer and other police witnesses have deposed that the complainant has initially reported to them that the deceased has committed suicide. He submits that this fact is contrary to the interest of the complainant and the point of view of the complainant is that nothing of the sort was reported by him to the police. He submits that an application for recalling and cross-examining a prosecution witness can be filed at any moment before pronouncement of the judgment. In response to a query, he submits that a prosecution witness can be declared hostile at any moment during the pendency of the trial. According to him, the law has not forbidden the advocate assisting the prosecution to seek permission to cross-examine a prosecution witness by declaring him hostile. He submits that it is also not necessary to make such a request at the date of recording of evidence but an application for the same effect can be filed even at a belated stage. In support of his contentions, he relies upon Kabir Alam v. The State (2008 PCr.LJ 327) and Yasir Sajjad v. Mst. Rani Nasir and another (PLD 2020 Sindh 596).
5. Mr. Nadir Ali Chachar, the learned counsel for respondent No.2 while opposing the instant application prefers his submissions at length. He submits that after investigation, the case was recommended for cancellation under C-class but the learned Judicial Magistrate took cognizance and the case was sent up for trial. According to him, the investigator and other officials have deposed in the line of investigation and according to the true facts of the case. He continues to argue and draws attention towards the said fact that those prosecution witnesses were not declared hostile by the learned prosecutor and even no application was filed by the applicant on the date of recording evidence. He submits that the application for recalling and cross-examination was filed with considerable delay, which amounts to fill up lacunas of prosecution case, and the same was rightly dismissed. In support of his arguments, he relies upon Muhammad Saleem v. Muhammad Azan and another (2011 SCMR 474) and The State through Regional Director Anti-Narcotic Force Balochistan v. Abdul Wahab and 11 others (2019 MLD 2048).
6. Mr. Deedar Ali Chohan, learned counsel for respondent No. 3 has also adopted the submissions preferred by Mr. Nadir Ali Chachar, and in addition to the same, he submits that there is no need to recall and re-examine or cross-examine any of the witnesses. According to him, the counsel for the complainant can only assist the learned prosecutor and he has no right to seek permission to declare a witness hostile. He points out that the counsel appearing before this Court has also appeared for the complainant before the trial Court.
7. Mr. Aftab Ahmed Shar, learned Additional Prosecutor General, also adopts the submissions preferred by both the learned advocate appearing for respondents. According to him, declaring a witness hostile is something extraordinary, as such the courts usually consider the evidence of a hostile witness with care and caution. He submits that in case of cross-examining those of official witnesses, a chance of severe damage to the prosecution case cannot be ruled out as such the prosecution have rightly avoided declaring them hostile at the time of recording of evidence.
8. I have pondered over this controversy in the light of valued submissions and cited case laws. By applying under Section 540, Cr.P.C, the applicant intends to re-examine/cross-examine some of the important prosecution witnesses i.e. investigating officer ASI Abubakar, ASI Mohammed Aslam Soomro, and Inspector Mumtaz Ali. It is worth noting that these witnesses have been examined and cross-examined on 14-04-2020, 15-05-2020 and 16-06-2020 respectively while the application for recalling those witnesses was moved on 07-07-2020. Hence, it is evident that the application for recalling these witnesses was moved after considerable delay. The counsel for the applicant has shown his anxiety regarding some portion of the deposition of these witnesses as such he intends to cross-examine them on that particular portion of their evidence. It is not disputed that under the provision of Article 150 of the Qanun-e-Shahadat Order, 1984 the trial Court may permit a party to cross-examine his own witness but for invoicing the said provision, such permission must be sought at the very time when the witness was still under oath and has deposed something contrary to the interest of the party who has produced him. It is worth noting that if the court considers that the witness is speaking the truth and he is not deposing in a twisted manner and contrary to his previous statement purposefully then the court may refuse to allow such a request. In the instant case, the application was moved after weeks even months of the examination of the witnesses, as such, it is not considerable.
9. It has been argued by Mr. Chachar that the private pleader engaged by the complainant can only assist the public prosecutor and he has no right to seek permission to cross-examine a prosecution witness by declaring him hostile. In my candid opinion, such contention is not correct. As per the provision of Section 493, Cr.P.C., a privately engaged pleader is required to act under the directions of the public prosecutor but it does not mean that he remains a silent spectator of the trial. I am of the view that he is an active affiliate of the public prosecutor and all his acts if not objected to or disowned by the public prosecutor should be given weight by the trial Court during the trial. Hence, a privately engaged pleader has a right to seek permission to cross-examine a prosecution witness either by himself or though the public prosecutor. However, such a request should be made immediately when the witness is within the witness box and still under oath.
10. Nevertheless, in every case when a request is made for cross-examining a prosecution witness after declaring him hostile, it is under the desecration of the trial Court to allow or disallow such a request. Article 150 of the Qanun-e-Shahadat Order, 1984 lays down that the Court may, in its desecration, permit a person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. No doubt, the credit of a witness can be impeached by the adverse party but if a party intends to impeach his own witness, the same can only be done with the permission of the Court. In the present case, it is the case of the complainant that some important prosecution witnesses during recording of their evidence have given testimony, which is inconsistent with the interest of the complainant. I am of the view that in such a situation, a prosecution witness cannot be impeached by declaring him hostile and permitting the counsel for the complainant or even the public prosecutor to cross-examine the said witness. The prosecution and complainant can only be justified in seeking the impeachment of a prosecution witness when during his examination-in-chief or cross-examination, he has given testimony, which is inconsistent with some former statement made by him. In the present case, the investigator and the other official witnesses have not deposed anything, which is inconsistent with any of their previous statement, as such it will not be justified to subject them to cross-examine by the complainant or public prosecutor. Resultantly, the instant criminal revision application is dismissed.
11. It is clarified that this Court has not expressed any opinion on the merits of the case, or the veracity of any of the witnesses, who have been examined by the trial Court. The trial Court shall proceed with the trial without being prejudiced in any manner by any observation made in this Order.
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