KH. IMTIAZ AHMAD, J.---Through the present petition order hated 28-4-2012 passed by the learned Addl.Sessions Judge, Rawalpindi has been assailed whereby the learned trial court accepted the request of the complainant to declare P.W.11 Liaquat Ali, SI/I.O. Of the case to be hostile and allowed the complainant to cross-examine the said witness.
2. The grievance of the petitioner is that the learned trial court had committed illegality by declaring the said P.W.11 to be hostile. In order to resolve the controversy, it is appropriate to mention the brief facts of the case.
3. The facts of the case are that the complainant lodged a criminal case bearing F.I.R No,113 dated 13-6-2010 under. Section 324/34, P.P.C. But subsequently the offence under section 302, P.P.C. Was added. P.W.11 Liaquat Ali, SI was the 1.0. Of the said case. He during the investigation found Muhammad Zafar and Faizur Rehman to be innocent and submitted the challan placing them in column II of the report under section 173, Cr.P.C. During the trial, said Liaquat Ali/I.O. Was produced as P.W.11. He according to the record and the investigation conducted by him made his examination in chief. At the end, he deposed as under:-- "On 14-8-2010 I completed the investigation of the instant case and in my investigation the accused namely, Muhammad Zafar and Faiz ur Rehman were found innocent and the case file was produced before the Allaqa Magistrate for preparing of report under section 173, Cr.P.C. While placing the names of the above said accused in column II of the report under section 173, Cr .P.0 . "
4. It was on this part of the statement that the learned DDPP and the learned counsel for the complainant requested the court that the I.O. Has no discretion to declare anybody guilty or non- guilty of the offence and his only job was to collect the evidence so he be declared hostile and they may be allowed to cross-examine him, as provided. Under Article 150 of the Qanun-e-Shahadat Order, 1984. This request was resisted by the learned defence counsel. However the learned trial court placed reliance .Upon 2010 M LD 1848 particularly at para-18 of the said judgment and thus on the basis of Article 150 of the Qanun-e-Shahadat Order, 1984 permitted the complainant and the learned DDPP to cross-examine the witness.
5. The learned counsel for the petitioner contended that the learned trial court had only picked up one paragraph of the judgment reported in 2010 M LD 1848 though in the said judgment the same proposition was involved since the 1.0. In his statement had deposed that according to his investigation the accused was innocent and the request was made for declaring him hostile but the learned trial court declined the same and so the matter came up before the High Court through criminal revision in the said case wherein the order of the trial court was upheld. He further contended that P.W.11 had deposed nothing against the record and whatever was deposed by him was contained in the record and so there was no occasion for declaring him hostile.
6. On the other hand, the learned counsel for the respondent once again placed reliance upon Article 150 of the Qanun-e-Shahadat Order, 1984 contending therein that it is the discretion of court to allow anybody to put a question to a witness which can be put in the cross-examination and also referred para-18 of the above said judgment. He also mentioned the facts which were brought on the record through cross-examination of P.W.11 showing therein that his investigation was not based on cogent reasons.
7. Arguments heard. Record perused.
8. The record shows that Liaquat Ali while appearing as P.W.11, in his statement as prosecution witness verified the entire proceedings of investigation conducted by him from beginning to the stage of his opinion with regard to the innocence of the two accused. In para-18 of the above referred judgment, the following observation was made:-- "18. In order to make entitle a party to invoke Article 150 of Qanun-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".
9. Now putting the facts of the present case on the criteria as mentioned above, it is clear that P.W.11 conducted the entire investigation, he declared two persons to be innocent, placed them in column-II of the challan. The said investigation was never challenged by the complainant before any forum so much so the prosecution itself summoned the said witness to appear as .PW.
Whatever was said by him was exactly according to the record and nothing was against the record entitling the other party to get him declared as hostile, suppressing the truth or inconsistent in his statement. In a case titled Muhammad Boota and another v. The State and another reported in 1984 SCM R 560, the august Supreme Court held that a witness who is un-favourable 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.
10. It is not denied that the opinion of the police with regard to the innocence or guilt of the accused is inadmissible in evidence. However, it is for the trial Court to determine this aspect but for declaring the witness to be hostile, it is necessary to establish that he had made the statement against the record which is not a position in the present case. It is apparent from the record that P.
W.11 Liaquat Ali only narrated that fact which he had done during the investigation and did not add a single word to that in examination in chief recorded in the trial court. Whatever the investigation was carried out by him before submitting the challan in the court that has been relied by the complainant. However, it is the job of the trial court to evaluate its veracity.
11. After going through the said statement, nothing has been noticed which can be said to be improvement, deviation, addition or concealment of material facts in the statement of Liaquat Ali SI/PW11. It is appropriate also to mention the facts of the case of Shah Draz Khan v. Muhammad Jabbar, 2010 M LD 1848 (Peshawar). The facts of the said case are almost similar to the present case, since in the said case also the I.O. Had declared one accused to be innocent by accepting his plea of alibi. However, this part of the investigation was challenged before the High Court and this part of the investigation was struck down by the High Court. However, when he appeared as witness he again deposed according to the record that according to his investigation the accused was innocent and at that moment the complainant requested to cross-examine him which was declined, which order was upheld by the Peshawar High Court.
12. In the present case, the complainant had never challenged the said part. Of the investigation of the I.O. Whereby he declared two persons to be innocent. So much so, the complainant was at liberty to file the private complaint due to this fact but he did not file any private complaint.
13. Thus, after going through the record, I am of the considered opinion that the learned trial court had committed illegality by declaring Liaquat Ali, SI/P.W.11 to be hostile, and allowed the complainant and the State counsel to cross-examine him. The result is that this petition is allowed with the result that order dated 28-4-2012 passed by the learned trial court whereby P.W.11 Liaquat Ali, SI/I.O. Was declared hostile is set aside and it is further held that the cross-examination conducted by the State counsel and the learned counsel for the complainant is also illegal and would not be a part of the evidence. The petition stands disposed of accordingly.