PLJ 2007 Sh.C. (AJ&K) 129
Present: Syed Hussain Mazhar Kaleem, J.
KABIR ALAM--Petitioner
versus
STATE--Respondent
Crl. Rev. P. No. 96 of 2005, decided on 7.7.2007.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 150--Pakistan Penal Code, (XLV of 1860) Ss. 302 & 440--Witness resiled from statement made during investigation--Affected--Discretionary power of Courts--Declaring a witness hostile--Art. 150 gives discretion to the Courts to permit the party calling a witness to put questions to that witness by way of cross-examination that, in is described as declaring a witness hostile--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 adverse party--The party producing the witness in case of cross-examination can contradict the witness by bringing the relevant affidavit on record--Such document cannot be brought on record trial Court committed no illegality and recorded the order in accordance with law as such the petition merits no consideration which is dismissed. [P. 132] A & B
Mr. Muhammad Azam Khan, Advocate for Petitioner.
Additional Advocate General for State.
Ch. Ali Muhammad, Advocate for Complainant.
Date of hearing: 7.7.2007.
Order
The above titled revision petition is filed to challenge the legality of the order dated 01-10-2005 passed by District Court of Criminal Jurisdiction, Mirpur, whereby the prosecution was allowed to place on record an affidavit allegedly executed by P.W Abdul Hamid while cross examining its own witness.
2. Brief facts forming background of the revision petition are that the accused petitioner is facing trial under Section 302/440, A.P.C before District Court of Criminal Jurisdiction, Mirpur. During recording of prosecution evidence Abdul Hamid an eye-witness was produced who made statement against prosecution and also against the statement recorded under Section 161, Cr.P.C. The Court allowed prosecution to cross-examine its own witness. During cross-examination an affidavit allegedly executed by the said witness was brought on record on
his accepting that same was signed by him, in a question asked
by complainant's counsel. An objection on behalf of defence was raised on the ground that document for not being part of challan or Police record could not be brought on record, which was repelled vide impugned order.
3. Ch. Muhammad Azam Khan, learned counsel representing the accused-petitioner, vehemently argued that prosecution cannot use a previous statement of its own witness to prove the same or contradict him which is the sole right of defence particularly when the same is not part of challan file or police record.
4. The submission was opposed by other side on the ground that witness was resiling from his earlier statement against the interest of prosecution, therefore, he could be cross-examined and the document signed by him in relation to this could also be placed on record.
5. I have heard the learned counsel for the parties and also gone through the impugned order.
6. It may be mentioned here that whenever a witness goes against the party producing him, the Court after considering the facts and circumstances can allow the said party to cross-examine the witness under Article 150 of Qanun-e-Shahadat Order, 1984 which is usefully reproduced:--
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."
7. The above article postulates that a Court is empowered to allow a party to cross examine its own witness when he stands in the situation which makes him adverse to the party desiring his testimony. The matter is entirely in the discretion of the Court which has to be exercised keeping in view that the Courts always aspire to find that a witness tells the truth. The circumstances in which such discretion may be exercised are not given in the article.
8. Two conditions namely a hostile animus and that the witness being not desirous of telling the truth, should weigh in the matter of allowing the prayer for cross-examining a witness cited by a particular party. To hold that a party can be allowed to cross-examine his witness only when it appears to the Court that "he was not desirous of telling the truth." The requirement is not that the witness must be suppressing the 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 but the substance of the parties respective cases and the effect of such statement there on 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. If he is to be tied to the admissions made by such a witness and if ultimately as often happens, the fate of his case to hang upon his admissions, than 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.
9. Ordinarily if it is made to appear that a witness has resiled from the statement made by him during investigation, a Court should permit the affected party to cross-examine such a witness under Article 150 of Qanun-e-Shahadat Order, 1984. The article gives discretion to the Courts to permit the party calling a witness to put questions to that witness by way of cross-examination that, in popular language, is described as declaring a witness hostile. The article says nothing as to declaring a witness hostile but provides that 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.
10. In the present case P.W Abdul Hamid made a statement against the prosecution which produced him as witness. Therefore, the prosecution was allowed to cross-examine the witness. During proceedings an affidavit executed by him was put to him which was accepted to have been signed by him, therefore, the same was brought on record. It is necessary to mention the party producing the witness in case of cross-examination can contradict the witness by bringing the relevant affidavit on the record. Thus, there was a little force in the arguments of counsel for the petitioner that the said document cannot be brought on record. The trial Court committed no illegality and recorded the order in accordance with law as such the petition merits no consideration which is dismissed.
(N.F.) Petition dismissed.