Qatl-i-amd of Haji Hameed was reported by his widow Mst. Neelofar complainant. Her statement was also recorded u/S. 512 Cr.P.C, on 14.4.2004, accordingly. But she, allegedly, narrated altogether a different story in the witness-box of the trial Court, as PW 7, on 26.5.2007.
2. Shafiq Ahmad P.W.8, brother of the deceased, applied on 18.8.2007 in the trial Court, for declaring Mst. Neelofar P.W.7 as won over/hostile witness and sought consent of the Court for her cross examination by prosecution. This application was dismissed by Mr. Muhammad Zeb Khan, Addl: Session Judge VII, Peshawar, vide order dated 13.9.2007 which has been impugned in this criminal revision.
3. Mr. Alamzeb Khan, Advocate for petitioner Shafiq Ahrnad argued that the trial Court had ample power and Mst. Neelofar should have been declared hostile witness as there was sufficient material before it in the shape of the contents of F.I.R. and her statement recorded. under Section 512 Cr.P.C. to hold her hostile because she has drastically departed from her previous statements. In this aspect, he placed reliance on P.L.D. 1991 AJK 76. He said that there is no time limitation for moving application to declare a witness hostile and permission to cross examine him. Therefore, the prayed permission should have been given in the interest of justice.
4. Mr. Ubaidullah Anwar, A.A.G. appearing for State supported his views.
5. Mr. Javed A. Khan Advocate, appearing for Respondent No 2 accused, argued that firstly, Shafiq Ahmad petitioner (P.W.8) has no locus standi to apply for the aforesaid purpose, specially when the public prosecutor did not deem it appropriate to do so, and secondly, the application was moved after lapse of about three months. This delay is fatal for the prayers because it raises many doubts.
He concluded that Mst. Neelofar took oath, testified the truth and faced cross examination. The time is now over and prosecution can not be given such latitude to fill up lacunas, in its case, prejudicing the accrued rights of an under trial accused. He placed reliance on the Indian cases reported in A.I.R. 2001 SC 330 and A.I.R. 2002 S.C. 2432.
6. I have contemplated over the controversies placed before this Court in the above discussed facts and circumstances of the case.
7. In criminal trials, the public prosecutor is the in-charge of the prosecution. Chapter XXXVIII Cr.P.C. covers it and 5.493 specifically speaks of it. In this case, admittedly, the public prosecutor did not request the trial Court to declare Mst. Neelofar P.W.7 hostile when she was examined and cross- examined in his presence. The statement of Shafiq Ahmad, petitioner herein, was recorded in the same Court, next to PW 7 Mst. Neelofar. He also did not move application on the same day to get Mst. Neelofar declared hostile and cross-examined. It was moved after three months.
8. In past, the State used to be the only party against an under-trial accused, entitled to impeach the credit of a witness called by prosecution, under Article 151 of Qanun-e-Shahadat. Thereafter, dispensation of criminal justice in our country took a turn when Islamic provisions in hurt and homicide related cases were incorporated in Pakistan Penal Code, wherein the personal right of victims of hurt cases for compensation in the shape of arsh and daman was existing. Similarly, in homicide cases the personal right to recover compensation in shape of Diyat or Khun Baha was also vesting in legal heirs of the deceased, recognized by Islamic Sharia. All such cases are now compoundable at the option of the persons entitled to receive said compensations. At the advent, paramount significance of the aforesaid persons was recognized in the case of Mohammad Sharif us. Durriyaman reported in PLD 1993 Peshawar page 151 (a) whereby their right of audience got established in our criminal jurisprudence. So, in the prevailing criminal legal system, besides public prosecutor, the victims of hurt cases and legal heirs of deceased, in homicide cases, also have some rights in their personal capacity to look after prosecution of an under trial accused, but no other person, be he a witness or related to the deceased.
9. Shafiq Ahmad petitioner, for that matter, is a witness only. He is not one of the legal heirs of the deceased, in presence of his widow and children, according, to Islamic Sharia. Therefore he has no 'locus standi' to apply for consent of the trial Court to allow cross-examination of PW7 Mst. Neelofar, in terms of Articles 150 and 151 of Qanun-e-Shahadat Order, 1984.
10.Grant of the permission prayed for is in the discretion of the trial Court, but the discretion is to be exercised in a judicious manner, as observed in the case Gura Singh us. State, (AIR 2001 SC 330), in following words, "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."
11. In, the case State of Bihar, Appellant u. Lalu Prasad alias Lalu Prasad Yadav, respondent (A.I.R 2002 SC 2432) The prosecutor did not seek permission to cross-examine a hostile witness during his statement. Such permission sought later on, was refused.
12. In the case P.L.D. 1991 AJK 76 cited by learned counsel for petitioner, power of Court to grant permission has been explained but existence of such power is not disputed herein. In the light of above discussion, this Court cannot confirm the view of learned counsel for the petitioner that since there is no time limitation for moving application to declare a witness hostile and to seek permission to cross-examine him, an application can be moved even after three months. This practice, if allowed, would pave numerous venues of legal complications and impediments towards fair trial. It will also open a gateway for delaying tactics, as it appears in this case. The proper course for the persons entitled is to raise such objection and make such prayer before that witness leaves the witness box, so that the witness, if allowed, could be cross-examined before he/she is vulnerable to extraneous factors.
13. I, therefore, see no force in this revision petition, the impugned order is upheld and the revision petition is dismissed.