' The accused-respondents are facing trial on the charge of murder and causing of hurt by forming unlawful assembly, as contemplated under section 5 read with section 15 of the Islamic Penal Laws Act. The case is at the stage of evidence of prosecution.
2. The report of the incident of firing resulting in tripple murder and infliction of injuries on the complainant party, was initially made by Muhammad Tariq, S.H.O. Khuiratta. Subsequently a written report was made by one of the injured persons, on which the case was registered against the accused. A countercomplaint was made against the complainant party on the charge of murder of Muhammad Taj, deceased. The counter-complaint was subsequently dismissed for want of prosecution, but the fact remains that in the counter complaint, the complainant party in the present case was ascribed the liability of killing of Muhammad Taj, deceased.
3. On January 4, 1990, Muhammad Tariq, Sub-Inspector, who at the relevant time was S.H.O.
Khuiratta and had made the first information report of the incident, appeared as a prosecution witness. On conclusion of examination-inchief, he was cross-examined by the defence. In answer to a question in cross-examination, the witness said that Muhammad Rafique Nayyar and others, the complinant party in the present case, were responsible for the murder of Muhammad Taj, deceased. This part of the evidence of the witness gave cause to the complainant to request the Court to allow him to cross-examine the witness on the aforesaid point. An application was moved for permission to do so. The learned members of the District Criminal Court, Kotli, holding the trial in the case, failed to reach a unanimous conclusion on the point and recorded difference of opinion which gave rise to the present reference.
4. The proposition desired to be settled in the reference is--
(i) whether the witness could be cross-examined by the party calling him as a witness; and ' whether in presence of Public Prusama klhaid kha is the name fusama khlaid khan is the name prosecutor, the counsel for the complainant was competent to request for permission to cross- examine the witness.
' The rules of evidence relating to examination of witnesses, relevant to the proposition under consideration, are contained in sections 133 and 150 of the Evidence Act. Section 150 was described as section 154 in the Evidence Act of 1872. The scheme of examination of witnesses is provided under section 133. It postulates that witness shall be examined-in-chief by the party calling him in support of its claim. The adverse party, if so desires, is allowed to cross-examine the witness so called, on the facts disclosed in the examination-in-chief, to dig out the truth. The scope of cross- examination need not be confined to the facts to which the witness testified in his examination-in- chief, as the opposite-party was free to cross-examine the witness in the light of its own defence.
The party calling the witness was clothed with a right to seek explanation of the matters referred to in cross-examination. In case new matters are introduced in re-examination, the opposite-party may further cross-examine upon such matters. The scheme of examination, cross-examination and re-examination of witness provides ample scope to resolve any controversy arising out of the testimony of witness examined in Court.
5. Section 150 postulates modality of questioning by a party to its-own witness. By 'virtue of the modality laid down in this section, it was provided that the Court may, in exercise of 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. These provisions were introduced to impeach the credibility of a witness by cross-examining him on such matters which purported to adversely affect the party who called the witness in support of its claim. Such an eventuality was possible, firstly, at the time of examination-in-chief, when a witness, instead of supporting the points which he was expected to support by giving testimony, declined to do so, and, secondly, when a witness may testify adversely to the party calling it and favourably to the opposite-party. However, in both the cases, the discretion vested with the Court to allow or disallow a party to cross-examine its own witness.
6. The provisions of law referred to above empower the Court to allow a party to cross-examine its own witness by putting questions which might be put in cross-examination by the opposite-party.
The eventualities for allowing such an action have been enuncited elsewhere. It is, therefore, safe to hold that the party which called the witness in support of its case, ordinarily, can seek permission of the Court to cross-examine its own witness on the points which fell within the ambit of either of the aforesaid eventualities.
7. The rules of evidence are formulated to advance the interest of justice by adhering to a universal scheme of procedure in all cases. The object of the rules of evidence, obviously, is to for out truth out of the jumble of conflicts arising from the controversies raised by the parties. Thus, in order to fmd out the truth, it was deemed expedient to lay down the scheme of procedure of evidence.
8. In present case, it is noticed from the orders passed by the presiding officers of the Court and the record that Muhammad Tariq, Sub-Inspector made initial investigation in the case. The complainant party was not satisfied with the manner of his investigation due to his partial attitude, as such it approached the higher officers for change of the investigating officer. It is undented that investigation in the case was completed by other police officers who submitted the challan and put the accused on trial to face the charge of murder and infliction of injuries by forming unlawful assembly. Muhammad Tariq being the first informant, was placed as prosecution witness No.1. He narrated the facts in the light of the psrosecution's case in his examination-in-chief. However, at the conclusion of examination, he agreed to a suggestion and deposed that Rafique Nayyar and others (the complainant party) were responsible for the murder of Muhammad Taj, deceased (deceased in the counter-case). The evidence of the witness to the aforesaid point gave cause to the learned counsel for the complainant to seek permission of the Court to cross-examine him on the point. The learned Sesssions Judge declined the prayer, as in his view, the Public Prosecutor alone was incharge of the case in the light of the provisions of section 493 of the Code of Criminal Procedure. As the Public Prosecutor declined to raise the objection and seek permission to cross- examine the witness, thus, in view of the learned Sessions Judge, the learned counsel for the complainant, who was supposed to act under the authority of the Public Prosecutor, was not considered eligible to seek permission to cross-examine the witness on the facts allegedly affecting adversely to the complainant party. The learned District Qazi, on the other hand, relied on the spirit of the provisions of Isamic law, whereby the heirs of the deceased were alone considered competent to prosecute, compromise or condone the offence of murder, and deemed it proper to allow the request.
9. The trial is being held under the provisions of the Islamic Penal Laws Act. The forum is also the Principal Shariat Court, named as District Criminal Court. The nature, quality and standard of evidence required under the Islamic Penal Laws Act is prescribed in relation to Islamic jurisprudence pertaining to evidence in a case of murder. The sentence provided under law, again, is in accordance with Islamic law, as when the charge of murder was proved by the evidence of two adult, just, male Muslim witnesses, the accused was punishable by sentence of Qisas. The alternate sentences are provided under section 3. These are called the sentences of `Tazeee.This is just to explain that trial of the accused was being held at the forum of Shariat Court and the law applicable to the trial was equally Shariat law. Therefore, all incidental matters and ensuing propositions in the trial are to be resolved in the light of spirit of the Islamic jurisprudence.
10. The other part of the pivotal point is, as to who is eligible, the State or the complainant which may be allowed to avail the concession of cross-emmining prosecution's witness as contemplated under section 150 of the Evidence Act. The rules of procedure postulated under the Code of Criminal Procedure, obviously, provide that ordinarily in all cognizable offences, State alone is incharge of the prosecution and in case of an eventuality of cross-examining its own witness, the Public Prosecutor or the Advocate acting under his authority is competent to seek permission of the Court to cross-examine its own witness. But the rule is not inflexible in case of trial under the provisions of Islamic Penal Laws Act. This is [ so, as under the provisions of the Islamic Penal Laws Act, the legal heirs of the deceased or, in case of hurt, the injured person is primary party in the case. The State is placed in secondary position. State being custodian of safety of life, liberty and property of its citizens, is entrusted with duty and responsibility to move its machinery to apprehend culprits, collect evidence and undertake the prosection of all cases of cognizable offences. Entrustment of these responsibilities to the State does not lower down or deprive legal heirs of deceased or an injured person to retain their legal entity as a party in the case within the scope of section 150 of the Evidence Act.
11. Section 3 of the Azad Jammu and Kashmir Interim Constitution Act postulates that Islam shall be the State religion of Azad Jammu and Kashmir. Section 31(5) further contemplates that no law shall be repugnant to the teachings and requirements of Islam as set out the Holy Qur'an and Sunnah and all existing laws shall be brought in conformity with the Holy Qur'an and Sunnah. These provisions are designed in the Interim Constitution Act to demonstrate that the provisions of Islamic law and practice shall be applicable to all disputes among the citizens in day-to-day life. It is enjoined upon superior Courts, being creation and custodian of the Constitution, to safeguard and uphold the scheme and system of laws envisaged by the Constitution. Policy of adherence to Islamic injunctions was analysed in Muhammad Akbar's case, 1980 PCr.LJ 107. It was obserbed: "All matters, including bail, are to be determined in the spirit of Islamic law. Where it is obligatory on the Government in an Islamic State to enforce Shariat Laws, it is equally obligatory on the Courts to implement the same in letter and spirit."
12. The scope and meanings of the provisions of sections 3 and 31(5) of the Constitution, were examined by the Supreme Court of Azad Jammu and Kashmir in Kashmir Timber Corporation's case, PLD 1979 Supreme Court (AJ&K)
139. Chaudhry Rahim Dad Khan, the learned Chief Justice, who spoke for the Court, while construing the meanings of the provisions contained under section 31(5), observed: "The Legislature is to make law and if it makes a law which is repugnant to the Holy Qur'an and Sunnah, then whose responsibility will it be to declare the law as void and unconstitutional. The judicial power vests in the Courts and they alone are competent to declare what the law is."
' Dealing with the objection that the provisions of section 31(5) do not relate to future laws but have reference to existing laws, it was observed:- "It is strange that the Constitution Act should provide for the existing laws to be brought in conformity with the teachings and requirements of Islam but should leave the Legislature free to make any law in future against the teachings and requirements of Islam. It is inconceivable that the Legislature should have so intended when it is unmistakably provided in section 3 of the Constitution Act that Islam shall be the State religion of Azad Jammu and Kashmir. We, therefore, feel no hesitation in holding that it is within the power of the Court to declare a law unconstitutional and void if it is repugnant to the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah."
The aforesaid dictum of the Supreme Court, obviously, empowers the superior Judiciary of the State to examine the questioned provisions of law, including the rules of procedure and to declare it unconstitutional and void for its being repugnant to the injunctions of Islam, if and when found so.
On this premises, it is permissible to hold that the provisions of section 493 of the Criminal Procedure Code, which vest authority in the Public Prosecutor as incharge of the case and deprive the counsel of the complainant (legal heirs of the deceased and the injured person) to conduct the trial and safeguard the interest of his client, cannot be held as inflexible. It does not debar the complainant to act independently.
13. This view may be appreciated by comparison with the provisions of section 417, Criminal Procedure Code. Under section 417, Cr.P.C., the right of appeal against acquittal exclusively vests in the State. On the analogy of these provisions, an injured person or legal heirs of deceased are not competent to prefer an appeal against an order of acquittal. But this Court as well as the Supreme Court have not adhered to this rule. In all cases, triable under the provisions of the Islamic Penal Laws Act, an order of acquittal is allowed to be challenged in appeal by the complainant, in addition to the State. The Supreme Court of Azad Jammu and Kashmir has recently approved that legal heirs of deceased and injured person are competent to prefer an appeal against acquittal.
' This is just to suggest that in trial of offences covered by the provisions of the Islamic Penal Laws Act, the rules of procedure described in the Code, whenever come in conflict with tK; Injunctions of Islam, are to be ignored and not to be strictly adhered to.
' On this view of the matter, when the Public Prosecutor fails to discharge his duty by properly representing the complainant or the legal heirs of the deceased, as in the present case, the complainant himself or through a counsel, is F well qualified to invoke the dicretion of the Court to cross-examine his -own witness on such points or matters which, in his view, affect his case adversely.
14. Before adverting to merits whether permission to cross-examine be given or not, let us examine source of the precedents, relevant to the proposition. The proposition of cross-examining its own witness by a party, received attention in Ranjit Singh's case, AIR 1952 Himachal Pradesh 81. In that case, a witness of recovery had made a concession to defence in answer to a question in cross- examination wherefrom an inference was likely to flow that at the relevant time, the accused was not present at such place. When such concession was made, the Public Prosecutor asked the Court to allow him to cross-examine the witness on that fact. The learned Sessions Judge, who was holding the trial, refused the request. When the matter came up in appeal before the Court, it was observed:-- "When a party calls a witness to prove a particular point (the recovery of ornaments in this case), and the opposite-party directs the cross-examination to matter wholly unconnected with the examination-in-chief and elicit facts in support of its case (the movements of Ranjit Singh in this case), which the opposite-party is entitled to do due to the facts elicited being irrelevant, it would be an improper exercise of discretion under section 154, Evidence Act, for the Court to refuse the party calling the witness to cross-examine him on the facts so elicited."
' The learned Judge, relying on another case titled "Amrita Lal Hazra v. Emperor", 42 Cal. 957, discarded the evidence out of consideration as, in his view, when the discretion was not exercised properly by allowing the party calling the witness to cross-examine him on the facts adversely affecting his case, the testimony of the witness had no evidentiary value.
15. The scope and meaning of the provisions of section 150 of the EvidenAct (section 154 of the Evidence Act, 1872), was analysed in Ghulam Ahmad's case PLD 1970 Azad J&K 1. Mr. Justice Saraf was invited to resolve the proposition as a witness of defendant produced to identify the signatures of his father on the alleged partition-deed, made a statement, in answer to a question in cross- examination, which adversely affected the defendant who produced him in support of his case.
The defendant considered the statement of the witness as hostile to him. But he was declined permission to cross-examine the witness on those facts. The learned Judge reversed the order of the trial Court and allowed the defendant to put questions to the witness in the nature of cross- examination as provided under section 150 of the Evidence Act. The learned Judge observed:--- "In every case the main question before a Court is to discover the truth from the conflicting pleas of the parties before it. The requirement is not that the witness must be suppressing truth or "not desirous of making a truthful statement" but as to whether he has made a statement which may adversely affect the party producing him. It is not every statement of such a witness adversely affecting the party producing him which would entitle a party to cross-examine him. The substance of tf-e parties' respective cases and the effect of such statement thereon have to be considered by the Court before granting or refusing such permission. When a witness makes a statement adversely affecting the party producing him, it assumes great importance and may be treated by the Court as an admission on the part of the party itself. Therefore, if the party who produced him desires to put him questions in the nature of cross-examination, it does not ask for the moon. If he is to be tied to the admission made by such a witness and if ultimately as often happens, the fate of his case is to hang upon his admission, then in all fairness to him, he should be permitted to put him questions in the nature of cross-examination, so that he may get an opportunity of bringing on record any material on the basis of which he may persuade the Court not to rely upon his evidence."
16. In present case, Muhammad Tariq, Sub-Inspector was called to appear as a witness of prosecution to supprot the facts put to him in his examination-in-chief. The witness made a statement by placing the onus of murder of Muhammad Taj, deceased, on the complainant party, which, according to the complainant, he was not supposed to elicit, as such it was considered relevant to seek permission of the Court to put him questions in the shape of cross-examination.
The charge of murder is a very serious charge, as such it was in the interest of justice to allow the learned counsel for the complainant to put questions td the witness in the manner of cross- examination, which in the opinion of the Court, were relevant to dispel the mystery of conflict, to find out the truth.
17. On going through the conflicting opinions of the members of the District Criminal Court it appears that the learned District Qazi a member of the District Criminal Court, reached a right conclusion as he deemed it expedient to allow the counsel for the complainant to put questions to the witness in the shape of cross-examination on the facts referred to above. The opinion of the learned District Judge is, therefore, approved.
The reference is answered accordingly.