' SHER MUHAMMAD KHAN, J---The instant petition, under sections 435/439 read with section 561-A, Cr.P.C. Has been filed by petitioner Shah Daraz Khan for setting aside the order dated 26-4-2010, passed by learned Additional Sessions Judge-III Bannu in Sessions Trial No,133 of 2008 of Criminal Case registered under F.I.R. No,236 dated 2-11-2006 police station, Basya Rhel District Bannu under section 302/34 P.P.C.
2. The grievance of the petitioner is that the learned trial Court has declined to accept the prayer of his counsel for declaring Sardad Khan Additional S.H.O. Police Station, Domail District Bannu, hostile, who is Investigating Officer in the case and was examined by prosecution as P.W.11 in the trial Court.
3. To understand the true picture of the controversy, it will not be out of place to explain the background of the case from its inception.
4. On 2-11-2006 at 7-25 a.m, petitioner's report was drafted by Abbas Khan A.S.-I. In casualty District Head Quarter Hospital, Bannu. In that report he charged accused Muhammad Israr and Muhammad Jabbar sons of Gul Zad Ali Khan alias Gul Malik resident of village Bangi Del, for the murder of his son Akbar Nawaz Khan.
5. The investigation of the case was entrusted to Sardad Khan P.W.11, who was A.S.-I./Investigation Officer at that time in police station Basya Khel. Accused Muhammad Jabbar, initially obtained pre-arrest bail, after about a month of the occurrence on 4-12-2006 and then withdrew the same petition from the Court of learned Additional Sessions Judge-III, Bannu on 13-12-2006. P.W. Sardad Khan, during investigation declared him innocent and purportedly released him under section 169, Cr.P.C. On his personal bonds.
6. The evidence collected by Sardad Khan during investigation in support of accused Muhammad Jabbar consisting of his plea of alibi, duly supported by a certificate obtained from District Forest Officer dated 11-12-2006 wherein he was shown to be on leave from 31-10-2006 to 5-11-2006. Three other persons namely Yousaf, Yaqoob Nawaz and Alamgir apart from the leave documents pertaining to the day of occurrence, were also examined under sections 161, Cr.P.C, wherein accused Muhammad Jabbar was stated to be on six days casual leave from 31-10-2006 in connection with medical treatment of his father. The said Investigating Officer had also recorded statement of one Muhammad Rahim alias Rahimi under section 164, Cr.P.C, after 19 days of the occurrence, in which the witness claimed that at the time and on the day of occurrence he was present with the deceased in the meanwhile two persons came on black motorcycle, who had muffled their faces with Chader. Driver of the motorcycle was not wearing helmet, they stopped the motorcycle near them and the perso- n sitting behind the driver of the motorcycle took out the Kalaslinikov from his Chader and fired at deceased Akbar Nawaz.
7. Sardad Khan P.W. On the basis of evidence collected during investigation, submitted his report to learned APP for obtaining his opinion, who opined that if the Investigation Officer is fully convinced and satisfied from the plea of defence taken by accused Muhammad Jabbar then he can place hint in column No,2 of the challan and rest be left at the mercy of the trial Court.
8. The proceedings of investigation conducted by Sardad Khan A.S.-I. Were challenged before this Court in Criminal Miscellaneous Quashment Petition No,1 of 2006 wherein, after discussing the relevant provisions of law it was held that the action of the Investigating Officer/A.S.-I. Is extremely arbitrary and reeking mala fide, because he has ignored the prosecution case as if he was blind- folded towards it and microscopically focused on defence plea to extend benefit to respondent/ accused and by accepting the petition the proceedings conducted by Sardad Khan A.S.-I., to the extent of his recommendations declaring accused Muhammad Jabbar innocent were quashed and accused Muhammad Jabbar was taken into custody for further proceedings according to law.
9. Accused Muhammad Jabbar, after arrest applied to the Court of learned Additional Sessions Judge-III, Bannu for releasing him on bail but he did not find favour, therefore, approached this Court for the same purpose. This Court accepted his plea and released him on bail vide order dated 3-12-2008, mainly on the plea of alibi, taken during investigation.
10. The complainant or State did not impugn the order of release of accused on bail before the august Supreme Court and opted to conduct trial.
11. After commencing trial proceedings the petitioner and his counsel examined 11 witnesses including Sardad Khan A.S.-I., to prove the guilt of accused charged in the F.I.R. By him. Sardad Khan A.S.-I., while recording his statement as prosecution witness in the trial, verified the entire proceedings of investigation, conducted by him, from the beginning to the stage of his recommendations in favour of accused Muhammad Jabbar declaring him innocent. At that stage learned counsel for complainant requested the learned trial Court to declare the witness hostile and provide him opportunity to cross-examine him. The learned trial Court declined the request of the learned counsel for petitioner vide order dated 26-4-2010 which has been impugned before this Court through the instant petition.
12. Learned counsel for the petitioner argued that the witness is presenting altogether different version against the interest of prosecution and is supporting the plea of alibi taken by accused Muhammad Jabbar, therefore, in the light of his biased attitude he should be declared hostile.
13. On the other hand, learned counsel for accused/respondent vehemently defended the order of the trial Court and argued that the witness did not say anything which is inconsistent with his previous documentary investigation or has said something not conducted by him or twisted the facts already mentioned in his investigation proceedings, therefore, such witness cannot be declared as hostile.
14. I have given my anxious thoughts to the arguments advanced by learned counsel of the parties, in the background of the episode, discussed above and have come to the following conclusion.
15. The word 'hostile' does not figure anywhere in any Article of Qanun-e-Shahadat Order, 1984 but it has been introduced in the judicial precedents, while interpreting section 154 of the Evidence Act of 1872 and Article 150 of Qanun-e-Shahadat, 1984. The wordings of both provisions of law are the same, which are reproduced for ready reference.
"The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might he put in cross examination by the adverse party".
16. The plain reading of the above provisions of law indicates that it is discretion of the Court to permit the party who calls a witness to put any question to him and it is not the right of that party.
This discretion is to be exercised with due caution and care keeping in view the interests of both the parties, so that no one is prejudiced from the order of the Court.
17. Normally a witness who becomes hostile or adverse to the party who produced him for recording evidence in his support, is allowed to be cross examined to impeach the credit of the witness by evidence of the kind mentioned in Article 151 of Qanun-e-Shahadat Order, 1984.
18. In order to make entitle a party to invoke Article 150 of the Oanun-e-Shahadat Order, 1984 it is necessary to establish that the witness is guilty of prevarication, or that he is inconsistent in his statement, or try to suppress the truth or that he bears animosity towards the party who calls him.
In the absence of any act on the part of the witness of the above nature, a party is not entitled to cross-examine his witness to impeach his credit.
19. It is also held by the honourable Supreme Court of Pakistan in case titled Muhammad Boota and another v. The State and another reported in 1984 SCM R 560 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 desires of telling the truth to the Court; that the witness answered to certain question is in direct conflict with evidence of other witnesses and is not and can never be a reason for allowing the witness to be treated as 'hostile and permitted to be cross-examined.
20. In the light of the above legal position, we have to see that whether the statement of P.W.
Sardad Khan, so far recorded, falls under the ambit of hostile witness or not.
21. As is evident from the brief summary of the proceedings conducted by the witness during investigation, he has collected some evidence, in support of the plea taken by accused Muhammad Jabbar in his defence. The question arises that the Investigating Officer is only bound to collect evidence in support of the complainant/prosecution or lie is also authorized to fairly investigate the crime even if during course of investigation some evidence goes in favour of the other side because collection of evidence cannot be confined only to such evidence which only favours the prosecution. Provisions of sections 157, 160 and 161 and other sections of Criminal Procedure Code 1898, dealing with investigation had provided mechanism of check and balance so that fair and impartial investigation is conducted within framework of said provisions and also without fear or favour from political and foreign elements or without nepotism and favouritism.
22. Purpose of investigation is to find out truth and place the same before the Court by way of collecting evidence during course of investigation.
23. In the instant case Sardad Khan only narrated that fact which he has done during investigation and did not add a single word to that, in his examination-in-chief, recorded in the trial Court.
Whatever investigation was carried out by him before submitting challan in the Court that has been relied by the complainant except to the extent of releasing accused Muhammad Jabbar on his personal bonds, which order, to that extent has been set aside by this Court while giving judgment on Criminal Qaushment Petition No,1 of 2006 decided on 15-2-2008. This Court only deprecated the role of the witness for giving preference over the evidence of prosecution and assuming the powers of the trial Court. The powers to record evidence during investigation in favour of accused by the Investigating Officer is not disputed, however, it is the job of the trial Court to evaluate its veracity and not the job of the Investigating Officer. It is pertinent to mention here that the complainant even after the judgment of this court did not apply to any competent authority to take the investigation from Sardad Khan and entrust the same to any other competent officer.
24. A discharged accused person can always be associated by the police with the investigation of the given criminal case at any subsequent stage during the investigation without obtaining any permission from the Magistrate discharging the said accused person as long as that accused person is not to be taken into custody during such subsequent investigation. If after his having been discharged by a Magistrate the police needs arrest 21n accused person during any subsequent stage of the investigation then a formal permission from the Magistrate is necessary for that purpose. This legal aspect of the matter, having in the knowledge of the complainant and his counsel but they, by their conduct reposed confidence on the investigation, already conducted by Sardad Khan P.W.11 and did not ask for fresh investigation by any other competent Investigating Officer.
25. The petitioner/complainant, his counsel and learned APP all were fully aware of the investigation conducted by Sardad Khan and it was in their knowledge that he will depose in support of the investigation, he has conducted and will exhibit all the documents brought by him on the record, no matter it is in support of prosecution or of defence. But in spite of knowing all these facts, even then they opted to examine him in the trial as their witness. When knowing each and every act of the witness, before calling him to appear in the Court then the party should own the statement of the witness in totality and face the repercussions of the statement of such witness.
26. I do not see any improvement, deviation, addition or concealment of material facts in the statement of Sardad Khan P.W.11, adverse to the interest of complainant and inconsistent with his previous investigation, to declare him hostile.
27. Therefore, the instant petition has no force to warrant interference by this Court as there is no illegality, irregularity or jurisdictional error in the order passed by the trial Court. Hence, it is dismissed.