' KHAWAJA MUHAMMAD SAEED, C.J.--- This criminal appeal is directed against the judgment of the Shariat Court dated 30-11-2002.
2. The controversy in this appeal has arisen out of a challan presented under sections 5/15 I.P.L.
Read with sections 307/109, A.P.C. Pending in the District Court of Criminal Jurisdiction, Mirpur since 8-3-1992 against the accused-appellants. Gulzar Hussain, P.W.6, was produced by the prosecution as an eye-witness of the occurrence. During his cross-examination certain questions were put about an affidavit allegedly given by him during the course of investigation. The photostat copy of the affidavit which was provided to the defence was tendered in evidence as Exh.D.A./2. After his cross-examination he was re-examined by the prosecution and the original affidavit tendered by hint during the course of investigation to the police was got exhibited as "P.AA." The accused- appellants challenged the legality of this part of the proceedings through a revision petition before the Shariat Court on the ground that there was no ambiguity in the statement of the said witness, therefore, there was no occasion to allow the prosecution to reexamine the said witness and get exhibited the original affidavit. The learned Shariat Court in the light of Article 133(3) of Qanun-e- Shahadat repelled the contention of the accused-appellants. Consequently, the revision petition filed by them was dismissed vide judgment under challenge dated 30-11-2002.
3. Ch. Ali Muhammad, the learned counsel for the accused-appellants, argued that all the previous statements collected during the investigation can be used by the defence for contradicting a witness. The corroboration of previous statements even if the same were given in the shape of affidavit is not available to prosecution. According to him, the prosecution can cross-examine a witness only if it can satisfy the Court that the witness was not desirous of telling the truth. In the shape of reexamination of any portion of statement, the prosecution cannot avail the right of cross-examination. It was further argued by the learned counsel that re-examination is allowed only to the extent of such portion of statement given by any witness during the course of his cross- examination which is ambiguous and requires clarification. According to him, in the present case there was no ambiguity in the statement of Gulzar Hussain, therefore, the occasion of re- examination was not available to the prosecution. He further submitted that the request made on 25th September, 2002 by the Public Prosecutor for permitting him to re-examine the witness and grant of permission by the trial Court was an illegal exercise of jurisdiction. He requested that this whole exercise, done under'the orders of trial Court, be quashed. The learned counsel for the appellant in support of his submissions placed reliance on a case reported as Rukhsar Ahmed and another v. State and 3 others 2001 YLR 1921, wherein it was laid down that the statement recorded by the police under section 161, Cr.P.C. During investigation cannot be used by the prosecution for the affirmation of facts incorporated therein. However, it was conceded in this case that the prosecution is at liberty to cross-examine or re-examine its own witness when such witness is declared as hostile. In this authority the right of defence is acknowledged to confront or contradict the prosecution witness with his alleged statement recorded by the prosecution during the course of investigation. The learned counsel for the appellants also cited other cases reported as Dilshad v. The State, 1995 PCr.LJ 248 and The State v. Syed Abdul Qayyum 2001 SCMR 14 wherein it was laid down that the statement recorded during the investigation under section 161, Cr.P.C. Is inadmissible in evidence; it can be used by the defence to confront and contradict the witness.
4. Conversely Ch. Muhammad Azam Khan, the learned counsel for the complainant, argued that Gulzar Hussain, P.W.6, was an eye-witness of the occurrence. No doubt an affidavit was tendered during the investigation by him before the police, copy of which was supplied to defence but no question about that affidavit was put to the said witness in his examination-in-chief. Therefore, when new material was brought by him on the file. Of the Court in the light of his affidavit, the prosecution in such circumstances was justified to ask for reexamination of this witness as postulated under Article 133(3) of Qanune-Shahadat, 1984.
5. Sardar Abdul Razik Khan, the learned Additional Advocate-General, supported the arguments of the learned counsel for the complainant.
6. We have heard the learned counsel for the parties and gone through the record of the case. In this case Gulzar Hussain, P.W.6, was produced before the trial Court on 25-9-2002 by the prosecution. During the course of his cross-examination he was questioned about an affidavit which he had allegedly tendered to police on 6-2-1992. The photostat copy of the affidavit was also tendered in cross-examination and got exhibited as "D.A./2". At the end of his cross- examination on the request of the Public Prosecutor the Court allowed him re-examination and also permitted him to tender original affidavit which was got exhibited as "P. AA". This procedure was questioned firstly before the Shariat Court and now the same has been assailed before us. In the examination-in-chief of this witness the affidavit was not tendered in evidence by the prosecution. However, in the cross-examination the questions were put to him about the affidavit and photostat copy of the same was got exhibited by the defence as "D.A." Under the provisions of the Code of Criminal Procedure the examination-in-chief and cross-examination 'of a particular witness are necessary to test the credibility and veracity of a witness who is produced in support of a particular incident by the prosecution. There is no dispute that the alleged affidavit was not given by this witness during the course of investigation and it is also an admitted fact that copy of the same was supplied to the defence. For safe administration of justice the defence rightly cross- examined this witness about such piece of evidence which was deposed by him in the shape of affidavit. Article 133 of Qanun-e-Shahadat has also acknowledged that a party shall first examine its own witness and then the opposite party may exercise right of cross-examination. After this, the party calling the witness has again been given the right of questioning the witness with a view to enable the witness to explain anything which may have been elicited from him in cross- examination. In support of our this observation it appears appropriate to reproduce Article 133 of Qanun-e-Shahadat in extenso which reads as follows:- "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- inchief.
(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 reexamination, the adverse party may further cross-examine that matter."
7. In the present case it is not the stage for us to form any opinion about the statement of witness whether in his cross-examination he has adversely affected the case of the prosecution or not.
Suffice it to say that he was not produced to testify the contents of his affidavit but he was rightly cross-examined by the defence about the affidavit tendered by him in investigation as that was his past statement given in the case. Statement under section 161, Cr.P.C. Is not a substantial piece of evidence and we agree with the learned counsel for the respondent/ complainant that the same can be used by the defence to bring out the truthfulness of a particular witness whose statement is recorded by the Investigating Officer under section 161, Cr.P.C. And is produced in the Court in support of prosecution version. In our view, Article 133(3) of Qanun-e-Shahadat has been incorporated for safe administration of criminal justice as even a bit of evidence produced in a criminal case is required to be considered along with the other evidence to form opinion of guilt or otherwise of an accused person involved in a case. In the cross-examination the defence cannot be confined to put only such questions to the witness which he has narrated in the examination- inchief. The defence can put any question which is related to the incident in a criminal case; even the character of the witness can be challenged in cross-examination. Under Article 133 of Qanun- e-Shahadat it is true that the prosecution cannot introduce in re-examination any new matter, however, if a material question has been omitted in the examination-inchief of a witness, it cannot be asked as a matter of right in reexamination. However, the Court's competence in allowing such question to the prosecution for safe administration of criminal justice is acknowledged by this provision of law. In a case titled Ghulam Ahmad and others v. Mst. Rabia Bibi and others PLD 1970 (AJ&K) 1 a witness, namely Abdul Hamid son of Kh. Usman Joo, was produced to identify the signatures of his dead father on the alleged partition deed. In the cross-examination, he supported the case of opposite party on material question of fact. The party which had tendered him in evidence was refused permission to cross-examine this witness by the trial Court. The matter was taken in revision before the High Court. Mr. Justice Yousuf Saraf, a renowned jurist and Judge of the High Court of Azad Jammu and Kashmir, allowed the revision petition by making the following observation:-- "When a witness makes a statement adversely affecting the party producing him, it assumes great importance and may be treated by the Court as an admission on the part of the party itself.
Therefore, if the party, who produced him, desires to put him questions in the nature of cross- examination, it does not ask for the moon. If he is to be tied to the admissions made by such a witness and if ultimately as often happens, the fate of his case is to hang upon his admissions, then in all fairness to him, he should be permitted to put him questions in the nature of cross- examination so that he may get an opportunity of bringing on record any material on the basis of which he may persuade the Court not to rely upon his evidence. This view was taken in some authorities. For instance in AIR 1933 Pat. 517 the same question arose before a Division Bench. Mr. Rowland, J. Who wrote the Division Bench judgment, graphically explained the rule in the following words:-- `There is a sense in which every witness may be regarded as hostile to the party against whom he deposes, whose interests his testimony may damage and friendly to the party who calls him and whose case his testimony is expected to support. ... Let us now examine the position when the opponent taken by surprise by such admissions of his own witness, asks permission to cross- examine him. If he says to the Court: `This is not my case; I do not admit these facts; the witness insofar as he deposes to these facts, is not my witness by whose admission I am bound; rather he is a witness friendly to my adversary.
Give me permission to treat him as I have a right to treat my adversary's witnesses, to cross- examine him, to test his veracity, to disprove the statements he has made against me'.
' Can a Court properly refuse such permission? And if leave is granted, what follows? In Kalagurda Suryanarayanda v. YarlagAdda Naidoo the trial Court in such circumstances had refused leave to cross-examine. Their Lordships expressed "much regret that this course was adopted, common fairness required that opportunity to test such statements by cross-examination should be given, if the evidence was to be relied on; and that not having been done, the evidence is of no value.
' These words of the Judicial Committee deserve careful perusal; they fully support two inferences; first that to obtain leave to cross-examine, all that is necessary is that the witness's testimony should have been adverse to the party calling him; and second that the value of the witness's testimony is to be judged in the light of the results of such cross-examination'.
' I, therefore, accept the revision petition and order that the witness Abdus Samad shall not be declared hostile but the defendant shall be permitted to put him questions in the nature of cross- examination as provided by section 154 of the Evidence Act.
8. In view of above, as new matter was introduced in the cross-examination, therefore, re- examination of the aforesaid witness was rightly allowed by the trial Court. The defence, however, is at liberty to cross-examine this witness again. No illegality was committed by the trial Court or the First Appellate Court. This appeal having no merit is hereby dismissed.