P L D 2024 Balochistan 123
Before Shaukat Ali Rakhshani, J
SHAMASULLAH ---Petitioner
Versus
ADDITIONAL SESSIONS JUDGE -I, QUETTA and 2 others ---Respondents
Criminal Revision No. 81 of 2023, decided on 2nd November, 2023.
(a) Qanun -e-Shahadat (10 of 1984) ---
----Art. 150---Hostile witness ---Scope ---If a prosecution witness, who shows that he is not
desirous of telling the truth to the Court or his answers to certain questions are directly in
conflict with the evidence of the other witnesses, then for such reasons he will be treated as hostile witness and the Court may in its discretion allow the prosecution to cross -examine
such witness.
Dost Muhammad v. Malik Shah Muhammad 2023 PCr.LJ 326; Muhamamd Sarfaraz
v. The State PLD 2013 SC 386; Sana Mia v. The State PLD 1959 Dacca 400; Anis Mondal v. The State PLD 1959 Dacca 36; Shaukat Ali v. The State 2005 MLD 1470 and Dwarka Singh v. Emperor AIR (34) 1947 Patna 107 rel.
(b) Qanun -e-Shahadat (10 of 1984) ---
----Art. 150 ---Declaration of a witness as hostile ---Powers of the Trial Court ---Scope ---Trial
Court dismissed the request of complainant for declaring one of prosecution witnesses as a
hostile witness ---Contention of the petitioner/complainant was that the prosecution witness
came up with a different version as statedly recorded under S. 161, Cr.P.C ---Trial Court
refused to declare prosecution witness as hostile on the ground that although his statement
was on record but since his signatures or thumb impression did not figure on the same, therefore, he could not be declared as hostile, which approach of the Trial Court was contrary to the law and was unjustified, albeit prosecution witness during cross examination categorically replied that on 22.10.2022 he did not make a statement against accused, which meant that he disowned his previous statement recorded under S. 161 of Cr.P.C. against him -
--In such situation the prosecution witnesses whose statement had been recorded under S. 161 of Cr.P.C could be declared as hostile and the prosecution could be allowed to cross -
examine its own witness, but the prosecution witness could not be allowed to confront and contradict a witness to his statement recorded under S. 161 of Cr.P.C, except those prosecution witnesses, whose statements were substantially proved otherwise such as the complainant; person whose signatures or thumb impression figured on the application for lodging an FIR, or fard- e-bayan signed by him; recovery witness whose signatures appeared
on the recovery memo(s); and Police Officers who submitted reports under S. 173 of Cr.P.C with their signatures ---Petition was allowed by setting aside the impugned order with the
directions to the Trial Court to summon and re -consider the testimony of said witness for
declaring him as hostile witness.
Muhammad Shabbir Rajput for Petitioner.
Sarwar Khan Kakar for Respondent No. 2.
Wajahat Khan Ghaznavi, State Counsel.
Date of hearing: 10th October, 2023.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J. ---Through this revision petition, the petitioner
seeks annulment of order -ruling dated 26.07.2023 ("impugned order") handed down by
learned Additional Sessions Judge -I Quetta ("Trial Court"), whereby his request for declaring
prosecution witness Samiullah (PW -2 ) as hostile was turned down.
2. Naqeebullah respondent No.2 and co- accused Naseer Ahmed were indicted by the
petitioner -complainant Shamsullah vide FIR No.73 of 2022 registered with Police Station
Hana Urak, Quetta for committing murder of his sister Mst. Ruqia, who was sent up before
the Trial Court, whereafter denial of the formal charge, the prosecution in order to bring home the indictment produced Shamsullah (PW -1) and Samiullah (PW -2), while Samiullah
(PW -2) was being examined before the court, he came up with a different version as statedly
recorded under section 161 of the Criminal Procedure Code, 1898 ("Cr.P.C."), henceforth, prosecution made a request to the Trial Court to declare him hostile, but such request was turned down, hence this petition.
3. Mr. Muhammad Shabbir Rajput, learned counsel for the petitioner inter alia
contended that the reasons drawn by the Trial Court while refusing his request to declare Samiullah (PW -2) as hostile witness is illegal and has prejudice the case of the prosecution
by observing that since there is no signature or thumb impression on his statement recorded under section 161 of Cr.P.C., therefore, the order impugned- ruling be set at naught and direct
the Trial Court to re -consider the statement of said witness in light of section 162 of Cr.P.C.
and Article 150 Qanun- e-Shahadat Order, 1984 ("QSO of 1984").
On the other hand, Mr. Sarwar Khan Kakar, learned counsel for respondent No.2 as
well as Mr. Wajahat Khan Ghaznavi, learned state counsel vigorously opposed and resisted the petition and urged that the impugned order suffers from no illegality and perversity,
therefore the petition merits to be dismissed.
4. Heard. Record pursued in view of the relevant laws and precedents of the apex and
this Court.
5. Section 162 of Cr.P.C. deals with the statements recorded by the police during the
investigation, which reads as under;
"162. Statements to police not to be signed; used of such statements in evidence. No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose ( save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made;
Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid the Court shall on the request of the accused referred to such writing and direct that the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by section 145 of the Evidence Act, 1872. When any part of such statement is so used, any part thereof may also be used in the re -examination of such witness, but for the purpose only of
explaining any matter referred to in his cross -examination.
Provided, further that, if the court is of opinion that any part of any such statement is not relevant to the subject - matter of the inquiry or trial or that its disclosure to the
accused is not essential in the interest of opinion (but not the reason therefor) and shall excluded such part from the copy of the statement furnished to the accused.]
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of section 32, clause (1) of Evidence Act, 1872 [or to affect the provisions of section 27 of that Act.] "
6. Clause (1) of section 162 of Cr.P.C., clearly manifests that during investigation
statement made to the police officer shall not be signed, however, while a witness whose statement has been recorded under section 161 of Cr.P.C. during inquiry or trial can be confronted and contradicted by the accused in a prescribed manner as contemplated under section 145 of the evidence Act 1872 so repealed and replaced by Article 140 of the QSO of 1984, which reads as under;
"140. Cross -examination as to previous statements in writing. A witness may be
cross -examined as to previous statements made by him in writing or reduced into
writing, and relevant to matters in question, without such writing being shown to him,
or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
7. Article 140 of the QSO of 1984 contemplates that while contradicting a witness to his
previous statement, his attention must be called to those parts which are to be used for the purpose of contradicting him, whereas section 150 of the QSO of 1984 manifests that the court may permit the party who calls a witness in its discretion to put any question to his own witness, which may be put during the cross -examination by the adversial party. For ease of
reference Article 150 of the QSO of 1984 is reproduced herein below;
"150. Question by party to his own witness. The Court may, in its discretions, permit the person who calls a witness to put any question to him which might be put in cross -
examination by the adverse party."
8. Article 137 of the QSO of 1984 enunciates that leading question must not be asked in
examination -in-chief or in a re -examination except with the permission of the court,
however, clause (2) of section ibid, provides that the court shall permit leading question as to matters, which are introductory and undisputed or have already sufficiently been proved, whereas Article 138 of QSO 1984 makes it clear that during cross -examination leading
question may be asked.
9. The apex Court in the case titled as "The State v. Abdul Khaliq" (PLD 2011 SC 554),
while attending to the provisions of sections 161, 162 of Cr.P.C. and Article 140 of the QSO of
1984 observed that Article 140 of the QSO of 1984 in a criminal case is governed and regulated by the provisions of section 162 of Cr.P.C., thus when the statement of a prosecution witness before the Trial Court is to be confronted with the statement recorded under section
161 of Cr.P.C. then section 162 of Cr.P.C. shall apply, but Article 140 of the QSO of 1984
being a part of general law of evidence has its own independent legal efficacy and application
and as such previous statement of a witness recorded before any judicial, quasi judicial proceedings or inquiries made through some instrument, including an agreement or an affidavit can be confronted, inferring that it may include any other document including an application for lodging an FIR, fard- e-bayan signed by the complainant, disclosure and recovery memos
and reports furnished under section 173 of Cr.P.C., which figures the signatures of such prosecution witnesses.
10. In the criminal administration of justice it is now a well settled dictum that the
testimony of a prosecution witness declared as hostile cannot be totally brushed aside in its entirety unless such prosecution witness intends to prevaricate in order to help the accused, but it is also a trite law that if a prosecution witness, who shows that he is not desirous of telling the truth to the court or his answers to certain questions are directly in conflict with the evidence of the other witnesses, then for such reasons he would be treated as hostile witness and the court may in its discretion allow the prosecutor to cross -examine such
witness. In this regard, I would like to refer to the judgments of "Muhammad Boota v. The State"(1984 SCMR 560), Dost Muhammad v. Malik Shah Muhammad (2023 PCr.LJ 326).
11. In the case of "Muhamamd Sarfaraz v. The State" (PLD 2013 SC 386), the Supreme
Court while referring to the judgments titled as "Sana Mia v. The State" (PLD 1959 Dacca 400), "Anis Mondal v. The State" (PLD 1959 Dacca 36), "Shaukat Ali v. The State" (2005 MLD 1470) and "Dwarka Singh v. Emperor AIR (34)" (1947 Patna 107) expounded that section 162 of Cr.P.C. was incorporated with the intent to allow the accused to contradict the prosecution witness and not the prosecution. It was further observed that if the prosecution was allowed to confront a witness with his previous statement recorded under section 161 of Cr.P.C. after declaring the prosecution witness hostile, it would amount to using the same for corroboration rather than contradiction. For ease of reference, the relevant excerpt of Muhammad Sarfaraz's case is reproduced herein under;
"The very insertion of the words "with the permission of the Court by the prosecution" in the proviso quoted above through Amending Act mentioned above shows that the framer of the original code never intended that a previous statement of a witness
recorded under section 161 of the Cr.P. C, could be used by the prosecution to
contradict him, after being declared hostile.
8. The arguments that if the prosecution is allowed to confront a witness with his previous statement recorded under section 161, Cr.P.C, during the course of cross -
examination after being declared hostile, it would amount to using it for corroboration rather than contradiction would be just academic when we are quite clear in our mind
that it cannot be used by the prosecution for the purpose of contradicting the witness.
We, therefore, hold that the prosecution cannot be permitted to confront a witness with
his previous statement recorded under section 161 of the Cr.P.C. for the purpose of contradicting him even after being declared hostile."
12. In the instant case, the Trial Court refused to declare prosecution witness Samiulalh
(PW-2) as hostile on the ground that although his statement is on record but since his
signatures or thumb impression does not figure, therefore he cannot be declared as hostile, which approach of the Trial Court is contra to the law ibid and unjustified, albeit prosecution witness Samiullah (PW -2) during cross examination categorically replied that on 22.10.2022
he did not make a statement against accused Naqeebullah (respondent No.1), which means that
he disowns his previous statement recorded under section 161 of Cr.P.C. against him.
13. In view of the provisions and citations referred hereinabove, it can be gathered with
no other view that the prosecution witnesses whose statement have been recorded under
section 161 of Cr.P.C. can be declared as hostile and the prosecution can be allowed to cross -
examine his own witness, but the prosecution witness cannot be allowed to confront and contradict a witness to his statement recorded under section 161 of Cr.P.C., except those prosecution witnesses, whose statements are substantially proved otherwise such as the
complainant, whose signatures or thumb impression figures on the application for lodging an
FIR, fard -e-bayan signed by him, recovery witness whose signatures appears on the recovery
memo(s) and police officers who submit reports under section 173 of Cr.P.C. with their
signatures.
14. For the foregoing reasons, the petition is allowed and consequently the order -ruling
impugned herein dated 26.07.2023 is set at naught with the directions to the Trial Court to summon and reconsider the testimony of Samiullah (PW -2) for declaring him as hostile
witness on the touchstones discussed hereinabove.
Copy of this judgment be sent to Registrar of this Court for onward transmission to
the Judicial Magistrates, Additional Sessions Judges and Sessions Judges of the province for adherence.
JK/153/Bal. Petition alloweThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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