FARAH JAMSHED, J.- Feroz Khan, petitioner, herein, has assailed the order dated 17.06.2025 of the learned Additional Sessions Judge, Bara Khyber, whereby, the application filed by the prosecution for declaring Gul Badshah PW-2 as hostile witness, was accepted.
02. As per the record, trial of the case FIR No.371 dated 25.10.2024, registered under section 9-D CNSA, at Police Station Bara, District Khyber, was in progress before the court of learned Additional Sessions Judge, Bara Khyber, wherein, the prosecution examined Constable Gul Badshah as PW2, being the marginal witness to the recovery memo Ex.PW-2/I. He also brought the murasila to the police station for registration of FIR. After examination of this witness, he was subjected to cross- examination, and at the end of his cross-examination, the learned APP for the State filed an application for declaring the witness as hostile. Notice of the same was given to the defence and after hearing both the parties, learned trial Court accepted the application and allowed the prosecution to cross-examine the witness as hostile, hence, the instant revision petition.
03. Learned counsel for the petitioner submitted that after thoroughly recording the statement of the witness in the light of his statement recorded under section 161 Cr.PC, he was subjected to cross-examination, hence, at the end of the cross-examination, there was no legal justification and ground, available to the prosecution to request for declaring the witness as hostile. Further submitted that if at all the prosecution was of the view that there is some ambiguity or some new facts have been introduced by the witness then it could have requested for re-examination of its witness, but under no circumstance, witness could be declared hostile after recording of his cross- examination.
4. The learned AAG representing the State while rebutting the arguments, advanced by the learned counsel for the petitioner, submitted that the witness concerned was declared hostile by the learned trial court while considering his conduct and un-necessary concessions extended by him to the accused, hence, the findings of the learned trial court are based on correct appreciation of facts. He also relied upon Bilal Muzaffar alias Heera's[1] case, in support of arguments.
5. Arguments heard and record perused.
6. Before proceeding with the merits of the case, the law on the subject needs to be looked into.
Chapter X of the Qanun-e-Shahadat Order, 1984 has laid down procedure "of the examination of witness" from Article(s) 130-161. Article 133 pertains to the Order of Examinations of witness, according to which, examination-in-chief is to be recorded first, then on the basis of same, a witness is cross-examined and subsequently, if the party calling the witness, so desires, it may request for re-examination of the witness. For convenience, Article 133 of the Qanun-e-Shahadat Order, 1984, is reproduced as below: - "Article 133. Order of examinations:
(1) Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross- examined, then (if the party calling him so desires) reexamined.
(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- examination: and if new matter is, by permission of the Court, introduced in reexamination, the adverse party may further cross examine that matter."
07. Similarly, Article(s) 137 and 138 provide that party calling the witness must not ask leading questions, if objected by the opposite party, during examination-in-chief or re-examination. For quick reading, Article(s) 137 & 138 are reproduced as under: - "Article 137. When leading questions must not be asked. -- (1) Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court.
(2) The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved.
Article 138. When leading questions may be asked.- Leading questions may be asked in cross- examination."
08. As far as declaring a witness hostile, there is no specific provision in the Qanun-e-Shahadat Order, 1984, however, a provision has been provided in Article 150, under which, a party calling the witness, may question his/her own witness. The relevant provision of Qanun-e-Shahadat Order, 1984 is reproduced, as under: - "Article 150. Question by party to his own witness: The Court may, in its discretion, permit the person who calls a witness to put any questions to him, which might be put in cross-examination by the adverse party.
Article 151. Impeaching credit of witness: The credit of a witness may be impeached in the following ways by the adverse party or with the consent of the Court, by the party who calls him:
(1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be un-worthy 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; when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecution was of generally immoral character."
9. The language of Article 150 has clarified that the power to declare a witness hostile is not automatic rather it is at the discretion of the court. If it appears to the court that the witness is deliberately deviating from the previous statement; is suppressing the truth or is otherwise un- cooperative, the court may allow said witness to be cross-examined by the party who has called him as its witness.
10. Now, the question is whether such a witness can be declared hostile, once his cross- examination has been conducted by the opposite party. The Qanun-e-Shahadat Order is also silent on this score, however, as per practice, the stage to declare the witness hostile, is during his examination-in-chief where it can be alleged that the witness is deviating from his previous statement or is suppressing the truth or is otherwise un-cooperative. In this respect, the superior court has settled the issue that if a witness in examination-in-chief makes a statement adverse to the interest of the party calling him as witness, the court can exercise the discretion under Article 150 of the Qanun-e-Shahadat Order, 1984, however, once the cross-examination is recorded, there is no concept of declaring a witness as hostile. Reference is made to Lalu Prasad's[2] case, wherein, it has been held that: - "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."
Similar view was also taken in Rahim-Ullah's[3] case.
11. Moreover, in the case of Ghous Baldish[4], the apex court has observed and held that: - "mere retraction of earlier statement by a witness does not automatically render him/her hostile.
Hostility and Retraction are two different concepts. Hostility, in legal terms, refers to a deliberate intent to deviate from the truth or act against the interests of the party calling the witness whereas Retraction' refers to the act of withdrawing or taking back a statement, testimony, or accusation, often due to its inaccuracy, falsity, or unreliability."
12. While allowing the application of the prosecution, learned trial court held that the witness retracted from his earlier stance, hence, his direct contradiction strikes at the root of the prosecution's case and creates serious doubt about credibility and integrity of the witness. While considering the statement as concessional statement, he was allowed by the learned trial court to be cross-examined by the prosecution as a hostile. However, as mentioned above, in the Ghous Bakhsh's case, the retraction of a statement did not automatically equate to hostility.
13. Article 141 of the Qanun-e-Shahadat Order, 1984 allows the opposing party to test the testimony and credibility of the witness by asking questions that are considered relevant to the case and the court has the discretion to allow/disallow any question if deems relevant/irrelevant. In the process where a statement is made in the cross-examination, which deviates from his previous statement or such statement is adverse to the interest of the prosecution, a witness cannot be declared hostile merely on this ground and permission could not be granted to the prosecution to impeach the credibility of the statement made during cross-examination, once the cross-examination has been conducted by the opposite party. Wisdom is drawn from Sona Mia's[5] case, wherein, it was held that: - "This is an obviously wrong interpretation of the law, for, a statement made by a witness to the police under section 161 Criminal Procedure Code, can never be used by the prosecution for corroborating or for explaining any part of that witness evidence in Court. The statement is made available to the defence only for the purpose of contradicting the witness and testing the veracity of that witness and never for any other purpose."
14. It is also deemed appropriate to mention here that at the final stage of adjudication, the trial court is required to evaluate the evidence in its totality by appreciating the cumulative effect of the evidence led during the trial. The testimony of single witness, in isolation, cannot form basis for arriving at a conclusion. In the same context, even when a witness is declared hostile, it would be for the court to analyse said statement and decide for itself about the reliability and credibility of such statement. Reference is made to case of Abdul Ghaffar[6], wherein, the apex court has held that;- "In the light of the above principles it is settled that the testimony of a "hostile" witness cannot be altogether left out of consideration. The evidence of a "hostile " witness has to be considered like the evidence of any other witness, but with a caution for the simple reason that the witness has spoken in different tones. When a witness speaks in different voices, it would be for the Court to decide in what voice he speaks the truth. In such case, the determining test is corroboration from independent source and conformity with the remaining evidence."
15. In view of the foregoing discussion, the discretion to declare a witness hostile, must be exercised judiciously and not as a routine matter, which may open a window for the prosecution to overcome its shortcomings, as it may undermine the integrity of the trial and compromise the rights of the accused.
16. The learned trial court failed to appreciate the legal proposition and committed an error in allowing prosecution to cross-examine its own witness, contrary to established judicial standard.
17. For what has been discussed above, the petitioner has made out a case for interference in the impugned order dated 17.06.2025 of the learned Additional Sessions Judge, Bara Khyber.
Resultantly, while accepting the revision petition in hand, the impugned order is set aside.
1. Bilal Muzaffar alias Heera vs. State (2025 P Cr. LJ 942 Lahore
2. Stale of Bihar vs_ Lain Prasad alias Lain Prasad Yadav (AIR 2002 SC 2432)
3. Rahim-UlIah and 3 others vs. The State (2010 GBLR 260)
4. Ghous Bakhsh vs. The State (2025 SCMR 547).
5. Sona Mia and another vs. The State (PM) 1959 Dacca 400)
6. State vs, Abdul Ghaffar (1996 SCN.412 678)