This revision petition under sections 435 and 439 Cr.P.C. has been filed by the petitioner Irshad Ahmad for setting aside the order dated 21.02.2019, passed by learned Additional Sessions Judge, Rajanpur in the trial of Criminal Case F.I.R. No.362 of 2014 dated 09.06.2014 registered at police station, City Rajanpur, District Rajanpur, under sections 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 Ghulam Nabi, S.I/Investigating Officer (PW-9), hostile , who is Investigating Officer in the case and was examined by prosecution as PW -9 in the trial court.
3. Ghulam Nabi, S.I/Investigating Officer (PW-9) on the basis of evidence collected during investigation, declared Hameed Ullah accused as not involved in the case.
4. After commencing trial proceedings, the petitioner and his counsel examined nine witnesses including Ghulam Nabi, S.I (PW-9) to prove the guilt of accused charged in the F.I.R. by him. Ghulam Nabi, S.I (PW-9) 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 Hameed Ullah declaring him innocent. At that stage, learned counsel for complainant requested the learned trial court to declare the witness hostile and provide him an opportunity to cross-examine him. The learned trial court declined the request of the learned counsel for petitioner vide order dated 21.02.2019 which has been impugned before this Court through the instant revision petition.
5. Learned counsel for the petitioner argued that the witness is presenting altogether different version against the interest of prosecution and is supporting the accused Hameed Ullah therefore, in the light of his biased attitude he should be declared hostile .
6. I have given considered the arguments advanced by learned counsel of the petitioner , in the background of the facts, discussed above and have come to the following inference.
7. The word 'hostile' does not figure anywhere in any Article of the 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 the Qanun -e-Shahadat Order, 1984. The wordings of both provisions of law are the same, which is being 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 ".
8. The plain reading of the above provisions of law indicates that it is decision 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 attention keeping in view the interests of both the parties, so that no one is prejudiced from the order of the Court. Normally a witness who becomes hostile or antagonistic 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 the Qanun-e-Shahadat Order , 1984. In order to make entitle a party to invoke Article 150 of the Qanun-e-Shaha dat Order , 1984, it is necessary to establish that the witness is guilty of equivocation, or that he is varying in his statement, or trying 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 witnes s of the above nature, a party is not entitled to cross-examine his witness to impeach his credit. It was also held by the august Supreme Court of Pakistan in case titled "Muhammad Boota and another v. The State " (1984 SCMR 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 desirous of telling the truth to the Court; that the witness' s answer 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.
9. In the light of the above legal position, I have to see that whether the statement of Ghulam Nabi, S.I (PW-9), so far recorded, falls under the ambit of hostile witness or not. 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 Hameed Ullah in his defence. The question arises that the Investigating Officer is only bound to collect evidence in support of the complainant/prosecution or 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 the Code of Criminal Procedure, 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 partiality and favouritism.
Resolve of investigation is to find out truth and place the same before the Court by way of collecting evidence during course of investigation. In the instant case Ghulam Nabi, S.I (PW-9) only narrated facts which he had come to know of during investigation and did not add a single word to that, in his examination-in-chief, recorded in the trial Court. The petitioner/complainant, his counsel and learned ADPP all were fully aware of the investigation conducted by Ghulam Nabi, S.I (PW-9) and it was in their knowledge that he will depose in support of the investigation, he has conducted, no matte r 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. I do not see any improvement, deviation, accumulation or suppression of material facts in the statement of Ghulam Nabi, S.I (PW-9), adverse to the interest of complainant and inconsistent with his previous investigation, to declare him hostile . 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 , defeating the truth or shifting in his statement. 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 Ghulam Nabi, SI (PW-9) only recounted that facts which he came to know of 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 relevancy and admissibility .
10. Therefore, the instant petition has no force to warrant interference by this Court as there is no impropriety , illegality or jurisdictional error in the order passed by the trial Court. Hence, this petition is dismissed .