ROZI KHAN BARRECH, J. The instant constitution petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter "the Constitution") with the following prayer: "It is, therefore, respectfully prayed that this Hon'ble Court may graciously be pleased to call for record of case from the Appellate Court and after perusing the same to declare the witness i.e. PW-3 namely Dr. Lal Mohammad as hostile witness and opportunity may kindly be provided to complainant's parry to make cross examination upon the PW-3 and this court may kindly further be prayed that criminal proceedings may kindly be initiated against the hostile witness i.e. Dr. Lal Mohammad, in the interest of justice, and equity."
2. Facts of the case are that complainant Dost Muhammad lodged FIR No. 93/2020 dated 29.2.2020 at Police Station City District Sibi for an offence under sections 337-A(ii), 337-F(v), 147 and 149, P.P.C. against the private respondents.
After completion of the usual investigation, the challan was submitted before the trial court. During the trial, the prosecution produced PW-3, namely Dr. Lal Mohammad Magsi. After recording the statement before the court as PW-3, at that stage, learned counsel for the complainant requested the learned trial court to declare the witness hostile and provide him with an opportunity to cross- examine him. The learned trial court declined the request of the learned counsel for petitioner vide order dated 29.01.2021. Being aggrieved from the order dated 29.1.2021, the petitioner filed a revision petition before learned Additional Sessions Judge-I Sibi, and the same was dismissed on 11.3.2021, whereafter the instant petition has been filed.
3. We have heard learned counsel for the parties and have perused the entire record with their able assistance.
4. The grievance of the petitioner is that the learned trial court has declined to accept the prayer of his counsel for declaring Dr. Lal Mohammad Magsi (PW-3), hostile, who allegedly examined the petitioner and in the case was examined by the prosecution as PW-3 in the trial court.
5. 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 the 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".
6. The plain reading of the above provisions of the law indicates that h is the 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 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-Shahadat 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 witness 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 a case titled "Muhammad Boota and another v. The State" (1984 SCMR 560) that a witness who is in 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 note desirous of telling the truth to the Court; that the witness's answer to a certain question is in direct conflict with the 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.
In the light of the above legal position, we have to see that whether the statement of Dr. Lal Mohammad Magsi (PW-3), so far recorded, falls under the ambit of a hostile witness or not.
7. Perusal of the record reveals that prior to the lodging of FIR, the complainant moved an application under section 22-A, Cr.P.C. before learned Sessions Judge, Sibi/Ex-Officio Justice of Peace with the averment that on 29.2.2020, the accused/respondents attacked upon the complainant with sticks as a result whereof he sustained injuries. Thereafter, he approached SHO PS City Sibi, who sent him to Civil Hospital Sibi for treatment, where Dr. Lal Mohammad Magsi issued Medico Legal Certificate (MLC). The said application was accepted, and FIR No. 93/2020 was registered at PS City Sibi.
After completion of the investigation, challan was submitted before the trial court. At the trial, the prosecution produced Dr. Lal Mohammad Magsi as PW-3, who recorded his statement. However, he denied owning the mentioned MLC in his statement on the ground neither he issued any MLC nor signed it. However, he deposed that he had seen the petitioner, namely Dost Muhammad, in Civil Hospital Sibi but didn't examine him as he was prohibited by the court from issuing MLC to any person.
8. On the other hand, there is nothing on record that shows that the said witness has ever issued any MLC in respect of the injuries allegedly caused to the petitioner/complainant. On the contrary, the record revealed that PW-3 from day one is negating the issuance of any MLC in favour of the petitioner/complainant. During proceedings of an application under section 22-A, Cr.P.C. before learned Sessions Judge, Sibi/Ex-Officio Justice of Peace, the concerned SHO submitted his report before learned Sessions Judge, Sibi/Ex-Officio Justice of Peace wherein he stated that on 17.3.2020, the complainant produced his written application and MLC, which was forwarded to Medical Superintendent for verification, which was not verified by Dr. Lal Mohammad Magsi, as the same has not been issued by him. During the investigation, the petitioner produced a photocopy of the MLC. There is no statement under section 161, Cr.P.C. of Dr. Lal Mohammad Magsi (PW-3) allegedly recorded by the Investigating Officer during the investigation. The petitioner/complainant, despite knowing all these facts opted to examine Dr. Lal Mohammad Magsi in the trial as a witness. Report submitted by the SHO concerned before learned Sessions Judge, Sibi/Ex-Officio Justice of Peace wherein he denied the signature of PW-3 on the MLC, but the said MLC was never challenged by the petitioner/ complainant before any forum so much, so the prosecution itself summoned the said witness to appear as PW-3.
It is well-settled principle that such a witness would not necessarily be declared a hostile witness for the reasons that he was unfavourable to the party calling him, and he was not desirous of telling the truth.
We do not see any improvement, deviation, accumulation or suppression of material facts in the statement of Dr. Lal Mohammad Magsi (PW-3), adverse to the interest of petitioner/complainant and inconsistent with his previous statement to declare him hostile; 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.