SYED ARSHAD ALI, J. Faisal Khan is an accused in the case FIR No.144 dated 07.04.2021 registered under section 9D of CNSA read with 15-AA at Police Station Lachi, District Kohat and is facing trial before the learned Additional Sessions Judge-I, Kohat.
2. Through this petition, he has challenged the order of the learned Trial Court dated 27.11.2021 whereby the application of the prosecution for re-summoning Muhammad Shareef MHC of Police Station Lachi whose statement was recorded as PW-2 for cross-examination by declaring him a hostile witness.
3. On 02.10.2021, Muhammad Shareef appeared before the Court as PW-2. He has stated in his statement that on 07.04.2021 he was present in the police station, the DFC Zafar brought the Murasila to the PS in respect of the case which he incorporated in shape of FIR Ex.PW-2/1. He is also custodian of the case property and maintaining register No.19. However, in the cross-examination he according to the prosecution has extended some concession to the accused relating to Register No. 19 as well as the safe custody of the case property.
4. In this background it was on 15.11.2021, the prosecution had filed an application for re-summoning of this witness- with further request to declare him as a hostile witness in terms of Article 150 of Qanun-e-Shahadat Order, 1984. The said application was accepted by the learned Trial Court vide impugned order dated 02.10.2021.
5. It was the main contention of the learned counsel for the petitioner that once the witness has recorded his examination-in-chief and he is then handed over to the defense for cross- examination, the prosecution has no locus-standi to file any application to the Court for declaring the said witness hostile if his credibility is impeached in the cross-examination or the truth has been extracted from his mouth during the cross-examination. Thus, the order impugned is not legally tenable in the circumstances when the said application was filed after almost 33 days of recording his statement. He has placed reliance on "State of Bihar v. Lalu Prasad alias Lalu Prasad Yadav (AIR 2002 SC 2432), Muhammad Boota and another v. The State and another (1984 SCMR 560), Muhammad Zafar and 4 others v. The State and another (PLD 2013 Lahore 178)"
6. In order to comprehend the issue, we would refer to the relevant provision of Qanun-e-Shahadat and Cr.P.C:-- "133. Order of Examinations.
(1) Witnesses shall be first examined-in-chief; then of the adverse party so desires) cross- examined, then (if the party calling him so desires) re-examined.
(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- in-chief.
(3) The re-examination shall be directed to the explanation of matters referred to in cross- examinations and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine that matter.
150. Question by party to his own witness.
The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.
151. Impeaching credit witness.
The credit of a witness may be impeached in the following ways by the adverse party, I or, with the consent of the Court, by the party who calls him:-
(1) by the evidence of person who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;
(2) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;
(4) when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.
540. Power to summon material witness or examine persons present.
Any Court may, at any stage of any inquiry, trial or C other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.
7. The careful examination of the above provision of law would clearly show that the examination- in-chief and cross-examination is statement of a witness which as a whole is read in evidence. This is settled principle of criminal administration of justice and law that if a witness in examination-in- chief makes a statement adverse to the interest of the prosecution, the court may on the request of prosecutor declare the witness hostile and permit him to exercise the right of cross-examination of the witness but there is no concept of declaring a witness hostile during his cross-examination by the defence. The right of cross-examination of defence is very valuable right and if the witness knowingly or otherwise in cross-examination makes a statement which creates doubt qua the truthfulness of prosecution case, the benefit of such doubt is always given to the accused and cannot be withheld in favour of prosecution. The hostility is a term which is relevant to the statement in examination-in-chief and if a witness' is allowed to be cross-examined by the prosecution after the cross-examination by the defence, the whole purpose of right of cross- examination of defence in the concept of criminal administration of justice and law of evidence would be defeated and provision of Articles 133 and 151 of Qanun-e-Shahadat Order, 1984 relating to the examination and cross-examination of a witness and impeachment of his credibility would negated. It is clear in the above provision of law that Court may permit the prosecution to impeach the credibility of statement of its own witness, if, the statement made by a witness in examination- in-chief is in deviation to his previous statement or the statement is adverse to the interest of prosecution, but no such permission can be granted to the prosecution on the basis of averment of the statement of witness in cross-examination by defence. The logic of law is not in favour of grant of permission to the prosecution to cross-examine a witness after cross-examination of defence, to impeach the credibility of his statement made by him in cross-examination. Rahim Ullah and 3 others v. The State (2010 GBLR 560).
8. Similarly, in the case of "State of Bihar v. Lalu Prasad alias Lalu Prasad Yadav (AIR 2002 SC 2432)" the Indian Supreme Court has elaborately answered this issue as following:-- "5. Nonetheless a discretion has been vested with the Court whether to grant the permission or not. Normally when the public prosecutor request for permission to put cross questions to a witness called by him the Court used to grant it. Here if the public prosecutor had sought permission at the end of the chief-examination itself the trial Court would have no good reason for declining the permission sought for. But the public prosecutor did not do so at that stage. That is precisely the reason why the trial Judge declined to exercise his discretion when the permission was sought for after the cross-examination was over. The witness has said only the details in cross-examination regarding the matter which he said in the chief-examination itself It would have been a different position if the witness stuck to his version he was expected to say by the party who called the witness, in the examination-in-chief by he showed propensity to favour the adverse party only in cross-examination. In such case the party who called him has a legitimate right to put cross questions to the witness. But if he resiled from his expected stand even in chief- examination the permission to put cross questions should have been sought then."
9. Therefore, the law is very clear and straightforward on the subject that a witness of prosecution can be declared hostile only when he in examination-in-chief does not support the prosecution case and record a statement contrary to his earlier statement recorded before the police under section 161, Cr.P.C. which is not a case in hand. In the present case, the statement of Muhammad Shareef was recorded on 02.10.2021 and the application to the Court was filed on 27.11.2021 after 33 days when he has left the dock as well as the Court. Thus, the request of the prosecution for declaring him a hostile witness was contrary to the established law on the subject which has been referred above. Hence, the Trial Court has erred by allowing the said request through the impugned order.
10. In view of the above, the impugned order of the learned Trial Court dated 27.11.2021 allowing to cross-examine Muhammad Shareef is not based on correct appreciation of law which is accordingly recalled. This petition is allowed in the above terms.