2021 P Cr. L J 537
MUHAMMAD SHAHID Versus AQEEL and 5 others
Criminal Revision No. 01/2020/BWPl
Re-examination of witness---Scope--Petitioner assailed order passed by Trial Court whereby his application for re-examination of medical officer was dismissed---Medical officer had suggested in his examination-in-chief that the duration of all the injuries at the time of death of deceased was six hours but during cross-examination he deposed that the duration of perianal injuries might be three to four hours---Time difference raised many a questions which needed an answer---Petitioner's case would be prejudiced if medical officer was not re-examined and his explanation on the issue was not sought---
Ss. 265-A & 493--- Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006), S. 9---Trial before Court of Session to be conducted by Public Prosecutor---Public Prosecutor may plead in all Courts in cases under his charge---Conduct of Prosecution---Scope--Petitioner assailed order passed by Trial Court whereby his application under Art. 133(3) of Qanun-c-Shahadat, 1984 was dismissed---Contention of respondents was that the public prosecutor was in-charge of the prosecution's case, as such, the petitioner had no locus standi to file such application---Validity---Section 265-A, Cr.P.C., ordained that the public prosecutor would conduct every trial before a court of Sessions initiated upon a police report---Section 9 of Punjab Criminal Prosecution Services (Constitution, Functions and Powers) Act, 2006, stipulated that the prosecutors appointed thereunder would be responsible for the conduct of prosecution on behalf of the Government---Words "police report" and "Government" were significant as they made a trenchant distinction between State cases and those initiated on private complaints--- Public prosecutor was in-charge of only the first category---Respondents contended that the above interpretation was consistent with S. 493, Cr.P.C., which made the Public Prosecutor in-charge of all cases and declared that privately instructed counsel would be subordinate to him---Words 'any case of which he has charge' clearly showed that S. 493, Cr.P.C., spoke of certain specific cases and not all of them---Case of petitioner was initiated on a private complaint, therefore, contention of respondents was repelled.
Purpose of criminal trial is to ensure that a person accused of an offence receives a fair and impartial evaluation of the situation in order to determine whether he is guilty or not.
Art. 133---Order of examination of witness---Object---Absolute right to re-examine a witness---Scope---Object of examination-in-chief is to elicit from the witness all the facts or such of them as he can testify in order to prove the case of the party calling him---Cross-examination, in contrast, tests his credibility by detecting and exposing discrepancies and educing suppressed facts---Cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief-Right of re-examination arises only after the witness has been cross-examined and as per clause (3) of Art. 133 of Qanun-e-Shahadat, 1984, its purpose is to clear an ambiguity or clarify or explain a matter which has cropped up during cross-examination---Use of word "shall" in Art. 133(3), Qanun-e-Shahadat, 1984 shows that the party who has produced the witness has the absolute right to re-examine him where explanation of an issue is required---Where something new is desired to be introduced, the counsel should seek leave of the court and in such eventuality the adverse party may further cross-examine that matter.
ORDER
This Criminal Revision is directed against order dated 3.1.2020 passed by the learned Additional Sessions Judge (MCTC), Ahmadpur East, whereby he dismissed Petitioner's application under Article 133(3) of the Qanun-e-Shahadat, 1984 (the "QSO"), for re-examination of Dr. Abdul Ghani (P W-1).
2. Brief facts of the case are that the Petitioner lodged FIR No.33/2017 dated 10.2.2017 at Police Station Chanigoth, District Bahawalpur, regarding Qatl-i-amd of his brother Muhammad Aziz. Since he was not satisfied with the police investigation, on 13.10.2018 he filed a private complaint under sections 377/302/34/109, P.P.C. against the accused. On indictment they denied the charge and claimed trial whereupon the Court directed the Petitioner to produce evidence. On 9.4.2019, the examination-in-chief of the Medical Officer, Dr. Abdul Ghani (PW-1), was partially recorded. The case was then adjourned to 27.11.2019 on which date his statement was completed and the learned counsel for Respondents Nos.1 to 5 also cross-examined him. On 7.1.2020, the Petitioner moved an application under Article 133(3) of the QSO for his re-examination which was dismissed. Hence, this petition.
3. The learned counsel for the Petitioner contended that during his cross-examination Dr. Abdul Ghani (PW-1) made certain averments which created ambiguity about the time between injuries and death of Muhammad Aziz deceased. His explanation was thus required for just decision of the case. The learned Deputy Prosecutor General supported him.
4. On the other hand, the learned counsel for the Respondents Nos.1 to 5 vehemently opposed this petition. He contended that the public prosecutor was in-charge of the prosecution's case. As such, the Petitioner had no locus standi to file an application under Article 133(3) of the QSO before the learned trial Court. For this he placed reliance on State through National Bank of Pakistan v. Mumtaz Ahmad and others (1984 SCMR 594) and Zarif Khan v. The State (1987 PCr.LJ 1131). He further submitted that the Petitioner intended to fill lacuna in the prosecution case which could not be permitted. If this petition was accepted it would cause prejudice to Respondents Nos.1 to 5.
5. Arguments heard. Record perused.
6. I first take up the legal objection of the learned counsel for Respondents Nos.1 to 5 regarding Petitioner's locus standi. Section 265-A of the Code of Criminal Procedure, 1898 (hereinafter referred to as the "Cr.P.C." or the "Code") ordains that the public prosecutor shall conduct every trial before a Court of Session initiated upon a police report. Likewise, section 9(1) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act; 2006 (the "Prosecution Act"), stipulates that prosecutors appointed thereunder shall be responsible for the conduct of prosecution on behalf of the Government. The words "police report" and "Government" in these provisions are significant as they make a trenchant distinction between State cases and these initiated on private complaints. The public prosecutor is in-charge of only the first category. I draw support for this view also from the fact that section 270, Cr.P.C. originally provided that "in every trial before a Court of Session the prosecution shall be conducted by a public prosecutor." The Law Reforms Ordinance, 1972, omitted section 270, Cr.P.C. and introduced a new procedure (Chapter XXII-A) for trials before the High Courts and Courts of Session. Section 265-A under the new dispensation qualified the phrase "every trial" with the words "initiated upon a police report."
7. The aforementioned issue also came up for consideration before this Court in Muhammad Sharif and others v. Rahmat Ali and others (1980 PCr.LJ 438). It was held:
"A perusal of all the cases referred to above will show that these are based upon and interpret the law, as it stood prior to the amendments in the Criminal Procedure Code, which were enforced in December, 1975. Section 270 of the Code clearly laid down that in every trial before the Court of Session, the prosecution was to be conducted by the Public Prosecutor. It was, therefore, in elucidation of this basic restricting clause that the superior courts consistently held that a private Complainant's counsel should not even be appointed a Special Public Prosecutor because administration of justice, like the maintenance of law and order is essentially a duty of the State...However, existing legal position is altogether different. Chapter XXIII, which contains section 270, has been omitted from the Criminal Procedure Code. Therefore, the entire basis of the submission made by the learned counsel completely vanishes. The new corresponding provision is contained in section 265-C. A bare reading of this new provision indicates that this section, now limits the class of trial before a Court of Session, which are to be conducted by the Public Prosecutor to only those which are initiated upon a police report. This provision is a clear departure from the old provision as contained in section 270, Cr.P.C. which did not create any distinction on the basis of the mode of initiation proceedings and assigned the prosecution to the Public Prosecutor because of the forum of trial only. Therefore, the intention of the Legislature obviously is that the conduct of trials before the Courts of Session by the public prosecutor be limited to only such cases as are initiated upon a Police report."
(emphasis added)
The above view was endorsed by the Sindh High Court in Muhammad Shafi v. The State and 9 others (PLD 1981 Kar. 221).
8. The learned counsel for Respondents Nos.1 to 5 argued that the above interpretation was inconsistent with section 493, Cr.P.C. which makes the public prosecutor in-charge of all cases and declares that privately instructed counsel shall be subordinate to him. For facility of reference, the said section is reproduced:
493. Public Prosecutor may plead in all Courts in cases under his charge.---Pleaders privately instructed to be under his direction. The Public Prosecutor may appear and plead without any written authority before any Court in which any case of which he has charge is under inquiry, trial or appeal, and if any private person instructs a pleader to prosecute in any Court any person in any such case, the Public Prosecutor shall conduct the prosecution and the pleader so instructed shall act therein, under his directions. (emphasis added)
9. The words highlighted above clearly show that section 493, Cr.P.C. speaks of certain specific cases and not all of them. As such, it contradicts the learned counsel's contention rather than supporting it. One may also draw the conclusion that the public prosecutor is not in-charge of the complaint case from the ratio of State of Punjab v. Surjit Singh and another (AIR 1967 SC 1214) decided by a Larger Bench of the Supreme Court of India. The question before it was whether the public prosecutor was competent to file an application under section 494, Cr.P.C. to withdraw a complaint instituted by a private party. The Court ruled:
"The reasonable interpretation to be placed upon section 494, in our opinion, is that it is only the Public Prosecutor, who is in-charge of a particular case and is actually conducting the prosecution that can file an application to withdraw from the prosecution. If a public prosecutor is not in-charge of a particular case and is not conducting the prosecution, he will not be entitled to ask for withdrawal from prosecution under section 494 of the Code...In the case on hand, it is found by the High Court, that the prosecution is being conducted by the Complainant, viz., the first respondent herein and the prosecuting Deputy Superintendent of Police, Bhatinda, was nowhere in the picture, when he filed the application under section 494 of the Code. The view of the High Court that such a Public Prosecutor is not entitled to file an application for withdrawal, in the circumstances, in perfectly correct".
10. The case law cited by the learned counsel for Respondents Nos.1 to 5 is distinguishable. Mumtaz Ahmad's case stemmed from the proceedings pending before the Special Judge (Central), Lahore, initiated on the FIR lodged by the National Bank of Pakistan. Similarly, Zarif Khan's case arose from a murder trial in which the Court took cognizance upon a police report and not a private complaint.
11. For all the above reasons the legal objection of the learned counsel for Respondents Nos.1 to 5 is repelled.
12. Now I turn to the merits of the case. The purpose of criminal trial is to ensure that a person accused of an offence receives a fair and impartial evaluation of the situation in order to determine whether he is guilty or not. Article 133 of the QSO provides the method for recording the testimony of a witness and the three processes of examination to which he may be subject. It reads as follows:
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) reexamined.
(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-examination; and if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine that matter.
13. The object of examination-in-chief is to elicit from the witness all the facts or such of them as he can testify in order to prove the case of the party calling him. In contrast, cross-examination tests his credibility by detecting and exposing discrepancies and educing suppressed facts. It need not be confined to the facts to which the witness testified on his examination-in-chief. The right of re-examination arises only after the witness has been cross-examined. As per clause (3) of Article 133, its purpose is to clear an ambiguity or clarify or explain a matter which has cropped up during cross- examination. The use of the word "shall" in this clause shows that the party who has produced the witness has the absolute right to re-examine him where explanation of an issue is required. However, if something new is desired to be introduced, the counsel should seek leave of the court. In such eventuality the adverse party may further cross-examine the matter.
14. The Halsbury's Laws of England (Fourth Edition, Volume No.17, page 195, para 280) explains the object and scope of re-examination as follows:
"On the conclusion of his cross-examination a witness may be re-examined on behalf of the party for whom he has given evidence in chief, for the purpose of explaining any part of his evidence given during cross-examination which is capable of being construed unfavourably to his own side; but no questions may be asked in re-examination which introduce wholly new matters, except by leave of the court, which is given subject to cross-examination on the new matter. Where, however, questions asked in cross-examination let in evidence which would not have been admissible in chief, the witness may be re-examined upon it. Leading questions are not permissible in re-examination."
15. In Mst. Sami and 8 others v. Mst. Firdos Begum and 15 others (2002 CLC 1989), a learned Division Bench of the Sindh High Court observed:
"The object of re-examination is clear an ambiguity which has arisen upon cross-examination. It does not provide a chance to the party for making improvement in the examination-in-chief. In fact, the re-examination is directed to the explanation of the matter referred to the cross-examination."
16. On the other hand, in Rammi alias Rameshwar v. State of Madhya Pradesh (AIR 1999 SC 3544), the Supreme Court of India held:
"There is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in cross-examination. No doubt ambiguities can be resolved through re-examination but that is not its only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination he has the liberty to put any question in re-examination to get the explanation."
17. Sarkar's Law of Evidence (18th Edition, p.2809) notes that courts are generally liberal in granting permission to a party to re-examine its witness beyond examination-in-chief and cross-examination so long Is the questioning remains within the range of relevancy of facts. Nevertheless, re-examination cannot be used to fill the lacunae. In Pannayar v. State of Tamil Nadu (AIR 2010 SC 85), the Supreme Court of India held:
"One cannot supplement the examination-in-chief by way of a re-examination and for the first time, start introducing totally new facts, which have no concern with the cross examination.".
18. In the instant case, Dr. Abdul Ghani (PW-1) deposed that on 10.2.2017 he was posted at RHC Chanigoth and the same day at about 2:30 p.m. conducted post-mortem of Muhammad Aziz deceased and found 11 sharp-edged weapon injuries on various parts of his body. Besides, he observed slight swelling on his perianal region which was stained with blood. There were multiple lacerations in the anal region and mucosal surface was swollen. He added that in his estimation the time that elapsed between injuries and death was six hours and between death and post-mortem was five hours. In the light of the forensic report he opined that Muhammad Aziz was sodomized. During cross-examination he inter alia deposed that -
"It is correct that the duration between injury and death was 6 hours. It is possible that if the treatment to deceased was given in time the life of deceased could be saved. According to duration between injury and death it is possible that injured might have received injuries at 04:00 a.m. I have not mentioned during of injury in column titled 'peri-anal region injury' in the postmortem report. The duration of peri-anal regional injuries might be 3-4 hours before the duration of other injuries. The peri-anal regional injuries are painful for the victim. It is possible that the injury No.1 to injury No.11 might be inflicted by same kind of weapon. It is correct that according to my final opinion and report of PFSA samples of semen did not match with any accused."
19. It would be seen that in his examination-in-chief Dr. Abdul Ghani seemed to suggest that the age of all the injuries at the time of Muhammad Aziz's death was six hours but during cross-examination he deposed that the duration of peri-anal injuries might be three to four hours. The time difference raises many a question which begs an answer. The learned trial Court has not appreciated this point.
20. I agree with the learned counsel for the Petitioner that the Petitioner's case would be prejudiced if Dr. Abdul Ghani (PW-1) is not re-examined and his explanation on the issue is not sought. Accordingly, this petition is allowed and the impugned order dated 3.1.2020 is set aside. In the result, the Petitioner's application under Article 133 of the QSO stands accepted. The learned trial Court is directed to recall the Medical Officer for re-examination.
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