P L D 2024 Balochistan 154
Before Rozi Khan Barrech, J
ASADULLAH ---Petitioner
Versus
ALLAH DAD and 2 others ---Respondents
Criminal Revision No. 105 of 2022, decided on 30th November, 2022.
Qanun -e-Shahadat (10 of 1984) ---
----Art. 150 ---Hostile witness ---Scope ---Petitioner assailed order of Trial Court whereby it
declined to declare the eye- witness as hostile witness ---Validity ---On perusal of the
impugned order, it appeared that the complainant and prosecutor made an oral request to
declare the eyewitness, as hostile on the ground that the said witness in his statement under S. 161, Cr.P.C., implicated accused/respondents No. 1 and 2, but when he appeared before the Court, he only implicated one accused in his statement, which was contrary to what he had deposed in his statement under S. 161, Cr.P.C.--- As per law, it was the decision of the
Court to permit the party who called a witness to put any question to him, and it was not the right of such party--- Such discretion was to be exercised with due caution and attention,
keeping in view the interests of both parties so that no one would be prejudiced from the
order of the Court ---In order to make a party entitled to invoke Art. 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 called him ---In the absence of any act on the part of the
witness of the said nature, a party is not entitled to cross -examine its witness to impeach his
credibility ---Record showed that the eyewitness fully endorsed the occurrence and did not
deviate from the story as narrated by the prosecution; however, he gave the specific role to
one accused and had not given any role to the other accused/respondents ---Thus, such
witness did not come in the category of a hostile witness; however, he was an unfavourable witness of the prosecution---Eye -witness, in an unguarded moment, deposed something
which was unfavourable to the prosecution; however, no such material existed on the record showing that the witness was deliberately suppressing the truth or had changed his loyalty and the intention was clear ---In the absence of all these circumstances, the discretion to
allow the party to re -examine its own witness could not be allowed---No improvement,
deviation, accumulation or suppression of material facts in the statement of eye -witness had
been seen, adverse to the interest of complainant and inconsistent with his previous statement under S. 161, Cr.P.C., to declare him hostile ---Therefore, the instant petition had no force to
warrant interference by High Court as there was no impropriety, illegality or jurisdictional error in the order passed by the Trial Court ---Petition was dismissed accordingly.
Muhammad Boota and another v. The State 1984 SCMR 560 rel.
Abdul Khair Achakzai for Petitioner.
Akhian Gul for Respondents Nos. 1 and 2.
Fazal -ur-Rehman, State Counsel for the State.
Date of hearing: 31st October, 2022.
JUDGMENT
ROZI KHAN BARRECH, J. ---This revision petition under sections 435 and 439,
Cr.P.C. has been filed by the petitioner Asadullah, son of Abdul Aziz, for setting aside the order dated 29.08.2022, passed by learned Additional Sessions Judge, Pashin in the trial of Criminal Case FIR No. 08 of 2022 dated 27.03.2022 registered at Levies Station, Yaroo Pishin District Pishin under sections 302, 337- ADF, 504, 506 and 34, P.P.C.
2. The grievance of the petitioner is that the learned trial court has declined to accept the
prayer of his counsel for declaring Abdul Manan (PW -4), hostile, who is the eye -witness of
the case and was examined by the prosecution as (PW -4) in the trial court.
3. Brief facts of the case are that after the usual investigation of the case, the challan was
submitted before the trial court. During the trial, the prosecution produced four witnesses,
while Abdul Manan (PW -4) recorded his statement and only implicated Nazir Ahmed in his
statement before the court and did not implicate the accused/respondents Nos. 1 and 2. At this stage, the learned counsel for the complainant as well as the learned Additional Public Prosecutor, requested the trial court to declare Abdul Manan (PW -4) hostile and provide
them with an opportunity to cross -examine him. The trial court declined the request of
learned counsel for the complainant and learned Additional Public Prosecutor vide order dated 29.08.2022, which is impugned before this court through the instant revision petition.
4. I have heard the learned counsel for the parties and have perused the entire record
with their able assistance.
5. On perusal of the impugned order dated 29.08.2022, it appears that the learned
counsel for the complainant and learned Additional Public Prosecutor made an oral request to
declare the witness, namely, Abdul Manan, as hostile on the ground that he, in his statement
under section 161, Cr.P.C also implicated accused/respondents Nos. 1 and 2, but when he appeared before the court as PW- 4, he only implicated Nazir Ahmed in his statement, which
is contrary to what he has deposed in his statement under section 161, Cr.P.C.
6. Before proceeding further, it would be appropriate first to see whether the witness
was hostile or unfavourable to the party who called him, as there is a distinction between a
hostile witness and an unfavourable witness.
7. A hostile witness is one who, from the manner in which he gives his evidence, shows
that he is not telling the truth and resiles from his earlier statement given during the investigation and damages the case of the calling party, while an unfavourable witness is one who without any hostile intention gives evidence which is contrary to the interest of the prosecution.
8. 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.
Therefore, 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".
9. The plain reading of the above provisions of the law indicates that it is the decision 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 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. The august
Supreme Court of Pakistan also held it in the case titled "Muhammad Boota and another v. The State" (1984 SCMR 560) that a witness who, is unfavourable is not necessarily hostile, for a hostile witness is one who from the manner in which he gives his evidence, shows that he is not 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.
10. In the light of the above legal position, I have to see that whether the statement of
Abdul Manan (PW -4), so far recorded, falls under the ambit of the hostile witness or
unfavourable witness to the party who called him. Abdul Manan (PW -4) fully endorsed the
occurrence and did not deviate from the story as narrated by the prosecution; however, he
gave the specific role to accused Nazir Ahmed and has not given any role to the
accused/respondents Nos.1 and 2. He is not coming in the category of a hostile witness; however, he was an unfavourable witness of the prosecution.
11. Abdul Manan (PW -4), in an unguarded moment, deposed something which is
unfavourable to the prosecution; however, no such material exists on the record showing that the witness was deliberately suppressing the truth or has changed his loyalty and the intention was clear, in the absence of all these circumstances,
the discretion to allow the party to re -examine his own witness cannot be allowed, and I
do not see any improvement, deviation, accumulation or suppression of material facts in the statement of Abdul Manan (PW -4), adverse to the interest of complainant and inconsistent
with his previous statement under section 161, Cr.P.C, to declare him hostile.
12. 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.
13. It is clarified that this Court has not expressed any opinion on the merits of the case or
the veracity of any of the witnesses, the trial Court has examined. The trial court shall
proceed with the trial without being prejudiced in any manner by any observation made in
this judgment.
JK/10/Bal. Revision dismissed.This 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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