Hostile or un-favourable witness---Determination---Hostile witness can only be declared by a Court though it is generally at the request of attorney posing the questions---In determining as.........

 2021 P Cr. L J 1026

Hostile or un-favourable witness---Determination---Hostile witness can only be declared by a Court though it is generally at the request of attorney posing the questions---In determining as to who can be considered a hostile witness, Court decides based on witness demeanor and credibility, if the witness should be treated as hostile---Court can also rule that witness is un-favourable witness and not hostile witness---Just because a witness is providing un-favourable evidence, it does not mean such witness is doing so in an effort to be vindictive.

Hostile witness---Right to cross-examine---Locus standi---Petitioner was a prosecution witness who intended to cross examine another prosecution witness on the plea of his being hostile to prosecution---Credibility of statement of a witness could be permitted to be impeached by prosecution of its own witness, if statement of such witness in examination in chief was in deviation to his previous statement or such statement was adverse to the interest of prosecution---No such permission could be granted to prosecution on the basis of averment of statement of witness in cross examination by defence---Permission could not be granted to prosecution to cross examine a witness after he was cross examined by accused to impeach credibility of his statement made by him during cross examination---Application was not filed at appropriate stage and no request was made by complainant or legal heir of deceased for invoking powers of Trial Court under Art. 150 of Qanun-e-Shahadat, 1984---Petitioner was only a witness and not amongst legal heirs and had no locus standi to file application for such declaration---High Court declined to interfere in the order passed by Trial Court declining to declare the witness as hostile---Revision was dismissed in circumstances.

----"Party"---Meaning.

ORDER

SARDAR AHMED NAEEM, J.---The petitioner assails the order dated 13.10.2020, passed by learned Additional Sessions Judge, Lahore whereby the application filed by the petitioner seeking permission to cross-examine Muhammad Ashraf, PW.1, examined during trial of case FIR No.97/2015 dated 06.03.2015, under sections 302, 109, 34, P.P.C., Police Station Hair, Lahore, was dismissed.

2. The facts, in brief, are that during trial of above mentioned case, the complainant, namely, Muhammad Ashraf was examined as PW.1 on 10.12.2018, however, on 07.03.2020, during the cross-examination, he had not supported the prosecution story, thus, on the same day, the application was filed by the petitioner and real brother of the deceased, namely, Rehmat Ali, not a party to these proceedings forwarded by the learned Deputy District Public Prosecutor seeking permission to declare PW.1 as hostile so that he could be cross-examined by the petitioner.

3. Learned counsel for the petitioner contends that the application was filed by the petitioner on the same day; that both the parties should be provided fair and adequate opportunity to put and prove their case before the Court; that the petitioner being real nephew of the deceased was within his rights to move the application but the learned trial court observed otherwise and proceeded to dismiss the petition on erroneous assumption of law, thus, the impugned order is liable to be set aside. To augment his contentions, learned counsel relied upon "Dahyabhai Chhaganbhai Thakkar v. State of Gujarat" (AIR 1964 SC 1563) and "Mukhtar Ahmad v. The State" (2003 SCMR 1374).

4. After hearing the learned counsel for the petitioner and perusing the available record, it was noticed that the examination-in-chief of PW.1 was recorded on 10.12.2018 and he was cross-examined on 07.03.2020. On the same day, an application was filed by the petitioner and Rehmat Ali to declare the said witness being hostile. It was asserted in the said application that PW.1 connived with the opposite party and was won over and, thus, be declared hostile.

5. A hostile witness is someone who appears to be refusing to tell the truth in a court of law or one who, by his actions or statements, is contrary to the party who called him. Witnesses provide what are known as "pre-trial statement", which are statements that essentially sum up the relevance of that witness to that particular case. Included in the statements are the facts and evidence that a witness agrees to provide in open court at the trial of the case.

6. A witness is declared as hostile, however, when his account under oath changes significantly from that which was provided in his pre-trial statement. For example, a hostile witness can no longer be trusted, and, as such, his own attorney can treat him as if he was working for the opposition and can question him accordingly.

7. Hostile witness can only be declared as such by a court, though it is generally at the request of the attorney posing the questions. In determining who can be considered a hostile witness, the court decides, based on the witness demeanor and credibility, if the witness should, in fact, be treated as hostile. The court can also rule that the witness is unfavourbale witness, not a hostile witness. This means that, just because the witness is providing unfavourable evidence, it does not mean he is doing so in an effort to be vindictive.

8. When a witness is declared as hostile, he is being accused of contradicting his pre-trial statement. When a party suspects a witness of being hostile, it makes an application to the court asking to treat the witness as hostile and if the request is allowed then the person who took to pre-trial statement is asked to prove before the court that the statement was made. It is settled principle of criminal administration of justice that the Court may permit re-examination of a witness if considered 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 find mentioned in Article 133 of Qanun-e-Shahadat, 1984.

133. Order of examination.

i. 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.

ii. ……………….

iii. The re-examination shall be directed to the explanation of matters brought on record during 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.

9. The hostility is a terms 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 purpose of right of cross-examination would be defeated and provision of Articles 133 and 151 of Qanun-e-Shahadat, 1984 relating to the examination and cross-examination of a witness would be negated. The credibility of a statement of a witness may be permitted to be impeached by the prosecution of its own witness, if, his statement in examination-in-chief is in deviation to his previous statement or the statements 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 being cross-examined by the defence, to impeach the credibility of his statement made by him during cross-examination.

10. The court is empowered, at any stage, to recall a witness for re-examination for the removal of any doubt regarding facts if dictates of justice and equity so demands but such permission cannot be granted to either party to fill in lacunae in the case or to cover a gap in the evidence adverse to the interest of other party. 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.

However, the discretion is vested with the Court to grant permission to cross-examine or otherwise. Normally when the Public Prosecutor requested for permission to put cross questions to a witness called by him the courts used to grant it, and if the Public Prosecutor had sought permission at the end of the examination-in-chief itself the trial court is having no good reason for declining the permission sought for. But in this case, the petitioner or the Public Prosecutor did not do so at appropriate stage.

11. As mentioned above grant of permission prayed for is in the discretion of the trial court to be exercised in a judicious manner as observed in the case titled "Gura Singh v. State" (AIR 2001 SC 330), the relevant observations read as under:

"Section 154 authorized the Court in its discretion to permit the persons who calls a witness to put any question to him which might be put in cross-examination by the adverse party. The Courts are, therefore, under a legal obligation to exercise the discretion vesting in them in a judicious manner by proper application of mind and keeping in view the attending circumstances. Permission for cross-examination in terms of section 154 of the Evidence Act cannot and should not be granted at the mere asking of the party calling the witness."

12. In the case titled "State of Bihar v. Lalu Prasad alias Lalu Prasad Yadav" (AIR 2002 SC 2432), the prosecution did not seek permission to cross-examine a hostile witness during the statement. Such permission sought later on, was refused. This question also came up before learned Division Bench of the Court in case titled "Bashir Ahmad v. The State and another" (PLD 2019 Lahore 594) and the relevant observations of their lordships appearing in para 6 of the judgment read as under:

"…The court has the due empowerment and the jurisdiction to call any witness at any stage of trial, on its own motion and even upon an application of either of the parties. But the question is as to what circumstances shall warrant for the exercise of the said power and/or whether a party to the trial has an absolute right, or as a matter of course can require the court to invoke its power and call a witness for the re-examination at any point of time and the stage of proceedings, because it shall be a mere technicality to do so? The answer to the above is in the negative. In our view, the parties have no such absolute right at all; the witness also should not be summoned by the court while exercising its discretion as a matter of routine, rather it all depends upon the facts of each case."

Referring to the law laid down in "Muhammad Boota and another v. The State" (1984 SCMR 560), their lordships observed as follows:

"…that a witness who is unfavourable is not necessarily hostile, for a hostile witness is one who from the manner in which he gives his evidence, shows that he is not desirous of telling the truth to the court; that the witnesses answer to certain question is in direct conflict with evidence of other witnesses and is not and can never be a reason for allowing a witness to be treated as hostile and permitted to be cross-examined….It is possible that if the prosecution is allowed to re-summon and re-examine Niaz Ahmad Khar, ASI (PW-1) then in fact it would not be an exercise in the discovery of truth but rather an aberration to fill the lacunae of the one party"

13. Reverting to the merits of this case it was observed that in para No.3 of the application filed by the petitioner seeking permission for re-examination, the petitioner asserted connivance between the complainant, namely, Muhammad Ashraf (PW-1) and the accused but the application of the petitioner is silent regarding details of said connivance. It was asserted that the deceased, namely, Atta Muhammad alias Naiko was real paternal uncle of the petitioner. Admittedly, the petitioner is a witness of the case as mentioned in the preceding para, however, it is to be seen if he is a party to the proceedings as word "party" find mention in Article 150 of Qanun-e-Shahadat, 1984. I considered it proper to have dictionary meaning of word "party" as the word "party" has not been defined in Qanun-e-Shahadat, The Code of Criminal Procedure and The General Clauses Act, thus, dictionary meaning of a word can be ascertained to have correct interpretation. In Webster's Third New International Dictionary word "party" denotes one directly disclosed by record to be so involved in the prosecution of defence of a proceeding as to be bound by the decision or the judgment therein; one indirectly disclosed by the record as being directly interested in the subject matter of a suit or as having power to make a defence or control the proceedings or appeal from the judgment.

In Corpus Juris Secundum, it has been defined as follows:

"With reference to judicial proceedings, the word "party" is generally used as meaning one of two opposing litigants, he or they by or against whom a suit is brought, whether at law or in equity, the plaintiff or defendant, whether natural or legal persons."

14. According to Bouvier's Law Dictionary, "parties" in law may be said to be those united in interest in the performance of an act. In advanced law lexican P. Ramanatha Aiyar's, the word "party" is defined as under:

"When the word "party" is used, its primary meaning is a litigant. It means a person who is a part to play in the proceedings and word "party" includes not only private parties but also the State if it happens to be the party as in police cases."

Having surveyed the above definitions, I am of the view that the petitioner may be relative of the deceased and a witness of the case but not a party to the proceedings.

15. It is also pertinent to mention that in cases of homicide the personal right to recover compensation by way of "Diyat or Khoon Baha" is vested in legal heirs of the deceased recognized by Islamic Sharia. All such cases are now compoundable by the legal heirs/victim as mentioned in the table given under section 345, Cr.P.C. So in the prevailing legal system, legal heirs of the deceased also have some rights in their personal capacity to look after prosecution but no other person be he a witness or related to the deceased.

Learned counsel for the petitioner after consulting the record apprised that the deceased was 45 years old and married. Referring to list of legal heirs of the deceased, he conceded that the petitioner was not amongst legal heir of the deceased. It may further be observed that the application was not filed or moved by the complainant but was simply forwarded by Prosecutor. The application was also not filed at an appropriate stage and no request was made by the complainant or any legal heir of the deceased for invoking powers of the Court under Article 150 of the Qanun-e-Shahadat, 1984.

16. As mentioned above, the petitioner in this case is only a witness. He is not amongst the legal heirs and thus had no locus standi to file application for such declaration. The judgments relied upon by the learned counsel for the petitioner have distinguishable facts and are not applicable to this case. The impugned order is based on sound reasons. No illegality or perversity was found therein, warranting interference of this Court.

17. For the foregoing reasons, there is no merit in this petition, which is hereby dismissed.