Re-Examination in Grievance Petition

 PLJ 1997 Tr.C. (Labour) 171 [Punjab Labour Appellate Tribunal, Lahore]

Present: JUSTICE (RETD.) MIAN GHULAM AHMAD, CHAIRMAN

DIRECTOR ADMINISTRATION and SECURITY WATER & SANITATION AGENCY F.D.A. FAISALABAD-Petitioner

versus

FARUKH SAGHEER-Respondent Revision Petition No. FD-162/96, dismissed on 24.11.1996.

(i) Industrial Relations Ordinance, 1969 (XXIII of 1.969)-

—-S. 25-A read with Order XLI, Rule 27 and Order XVIII Rule 17 C.P.C.-Grievance petition-Re-examination of witness-Appliation for--Rejection of-Challenge to-If such practice is allowed, sanctity of court proceedings will be set at naught and a party desirous of brining on record certain evidentiary material in accordance with his interests and wishes will get latitude to make such bids again and again; but such venture obviously would vitiate whole process, and other party to litigation certainly will adversely be affected; and this in turn would entail mis-carriage of justice.

[P. 172] A

 (ii) Industrial Relations Ordinance, 1969 (XXIII of 1969)-

—-S. 25-A read with order XLI Rule 27 and Order XVHI Rule 17 C.P.C.-  Grievance petition--Re-examiantion of a witness-Application for- Rejection of-Challenge to-There is a provision of production of additional evidence in appellant court (O. XLI, R. 27 CPC) as also for re- examination of a witness by the trial court (0. XVIII, R. 17 CPC)--T.hese provisions, however, are quite rarely to be availed of, and only with a view to assist the court in arriving at a correct and just decision and for advancement of ends of fairplay and justice-Such exercise has not to be undertaken in routine and in casual fashion-When some new evidentiary material, not in existence already, springs up or is discovered at a later stage, and it has absolute relevance to the matter in controversy or when
court finds itself handicapped in certain respects, it is empowered to re­ call a witness for re-examination or to call upon parties to lead more evidence on being moved by a party, or even suo moto—Petition dismissed.          [P. 173] B

Syed Sajjad, Advocate for Petitioner.

Ch. M. Ikram Zahid, Advocate for Respondent.

Date of hearing: 24.11.1996.

JUDGMENT By way of his revision petition, soundness of an order dated 14.3.1996, passed by the learned Presiding Officer, Punjab Labour Court No. 4, Faisalabad, in the course of proceedings of a petition filed under Section 25-A of the Industrial Relations Ordinance, 1969, by one Farukh Sagheer, Sub Engineer, against the 'Authorities' of WASA/FDA, has been called in question. The respondent before the Labour Court, the revision-petitioner here, made a request to the Labour Court for re-examining a witness, RW-1, who was found to have committed errors in making his statement and correction thereof was required, according to the learned counsel for the establishment. Some additional evidence was also intended to be adduced. The learned lower court has observed that there is no provision in law, empowering a court to grant such permission. How can a witness be enabled to amend or modify or improve upon his version? If such practice is allowed, sanctity of the court proceedings will be set at naught and a party desirous of bringing on record certain evidentiary material in accordance with his interests and wishes will get the latitude to make such bids again and again; but such venture obviously would vitiate the whole process, and the other party to the litigation certainly will adversely be affected; and this in turn would entail mis-carriage of justice.

2. The respondent before the Labour Court, in this case, had dosed the evidence, and this must be taken to be a well-considered and a material step, which would leave little room for re-opening of the case. There is provision for production of additional evidence, in appellate court ( Order XLI, rule 27, C.P.C.), as also for re-examination of a witness by the trial court (Order XVIII, rule 17, C.P.C.) These provisions however are quite rarely to be availed of, and only with a view to assist the court in arriving at a correct and just decision and for advancement of ends of fair-play and justice. Such excise has not to be undertaken in routine and in casual fashion When some new evidentiary material, not in existence already, springs up or is discovered at a later stage, and it has absolute relevance to the matter in controversy or when the court finds itself handicapped in certain respects, it is empowered to re-call a witness for re-examination or to call upon the parties to lead more evidence on being moved by a party, or even suo moto.

3.          It is, however, to be borne in mind that such an eventuality I more the need or requirement of the court, than it is the right or entitlement of a party to the litigation; and the primary object is search for reality, a mission of fact-finding, and objective dispensation of justice, which is the ultimate end of process of court and machinery of administration of justice. Well, all such elements appear to be lacking in the instant case; and no cogent reasons were stated in the court below by the learned counsel for the respondent for grant of the un-usual prayer made there. The employer could cot be allowed to fill up the lacunae or gaps in his evidence, to make amends for his errors and lapses, and to amend or rectify the testimony, which suffers in certain respects. If the statement of a witness of the establishment
was going to prejudice its cause, it had to blame none else but itself, and it could not be helped there. It would of course be open to the learned counsel to furnish an explanation in that regard, in an effort to convince the court, as regards genuineness or correctness of its cause, and about infirmity or un- soundness of the pleas taken up by the official. Request contained in the application under Section 151 C.P.C. had also been made too late in the day, when final arguments in the case before the Labour Court had already been addressed, twice in fact. Copy of the statement of the witness has been tendered, and it is sought to be extensively amended or altered, which incidence would be absolutely odd and un-usual indeed.

4.          The impugned order has been rendered by the learned Presiding Officer of the Labour Court,  on application  of mind,  and on correct appreciation of the question raised before him; and it does not call for any interference. The revision petition has no merit and is hereby dismissed with costs.

(K.A.B)                                                                            Appeal dismissed.

 

Re-Examination after Final Arguments

 PLJ 1998 Karachi 328

Present: DR. GHOUS MUHAMMAD, J.

NAZIR HUSSAIN-Appellant

versus

ABDUL MANAN--Respondent

Revision Application No. 201 of 1996, dismissed in limine on 4.9.1997.

Civil Procedure Code, 1908 (V of 1908)-

—S. 115 read with O, XVIII, R. 17 & S. 151 -Suit for specific performance of contract at final stage-Application for further cross-examination allowed by trial Court while matter was pending for final arguments-Challengeto-Whether after closing their respective side by parties, can witness be recalled for further cross-examination and if so under whatcircumstances-Question of-Even in absence of any express provision atany state of trial or proceedings either on its own motion or upon requestof either party may call and recall witnesses for purpose of re-examination or cross examination if dictates of justice and equity sodemand—This can be done in exceptional and special circumstances-­Central idea being that court has to make endeavours to discover truth-­Such powers have been vested in courts under Order XVIII, Rule 17C.P.C.-Courts can press into service section 151 C.P.C. if such requestsare made at instance of parties-Held: Trial Court having jurisdiction inmatter has not committed any illegality or material irregularity bypassing impugned order-Petition having no merits, is accordinglydismissed, ~        [Pp. 330 & 331] A & B

Mr. Muhammad All, Jan, Advocate for Petitioner. Mr. Usman Ghani. Rasfiid, Advocate for Respondents. Date of hearing: 4.9.1997.

ORDER

This order will dispose of revision under section 115 C.P.C. The applicant has challenged the u.'d,: •: J.atocl 15.4.1996 passed by the learned Ill-Senior Civil Judge, Karachi West, in Civil Suit No. 904/1985 (Old No. 1711/1983.) whereby application under section 151 C.P.C., fded by the respondent for further cross-examination of the plaintiff was allowedBriefly stated the background of the matter is that the applicant filed suit for specific performance against late Abdul Man nan whose L.Rs. are now contesting the case as respondent/defendants. The prayer clause in the plaint reads as under:-

(a) decree for specific performance of the agreement of sale dated 25.2.1981 directing the defendant, to execute and sign the documents of transfer of an area of 200 sq. yds. out of plot bearing No. M-2-612 (0-694) Block 'IT Shershah Colony, Karachi.

b) to execute and sign all the documents to effect mutation in regard to the Excise & Taxation Department and in the record of other authorities which may be declared competent by the concerned authorities to maintain the record of right of the said proper   Cost, of the suit

(d) Any other further and better relief which this Hon'ble Court may deem fit and proper under the circumstances of case."

The parties led their evidence and while the matter was pending for final arguments application was submitted by the respondents under section 151 C.P.C., for recalling the applicant/plaintiff for further cross-examination. In the supporting affidavit it was stated that the learned counsel for respondent was busy before this court therefore the defendant/respondent Abdul Maunau Pasha himself cross-examined the applicant but after looking into the cet, fied copies of the statement it transpired that material cross-examination could not be done due to serious illness and engagement of the learned counsel for the defendant. The applicant filed his counter affidavit and opposed the application on the plea that he was cross-examined at great length on 27.11.1995. Ultimately the learned trial court allowed that application vide the impugned order.

I have heard learned counsel for the parties at length and have perused the record.

Learned counsel for the applicant contended that, the impugned order is illegal, prejudicial and liable to be set, aside. He further submitted that the learned trial court ought to have considered that there is no provision of law whereby the respondents may be entitled to recall the witnesses for further cross-examination once the side stood closed after effecting cross-examination at length. Lastly he submitted that the learned lower court also failed to appreciate that the application for further cross-examination had been filed only to fill up the lacuna to which the respondents are not entitled under the law. Learned counsel for the respondent supported the impugned order and submitted that the said order is just and proper.

The question which require consideration is whether after closing of their respective sides by the parties, can a witness be recalled for further cross-examination and if so under what circumstances?

In my considered opinion even in absence of any express provision the court may at any stage of trial or proceedings either at its own instance or that, of a patty recall a witness for further examination or cross-examination in the interest of justice though the party may have closed its side. This can be done in exceptional and special circumstances where the interest of justice so demand. (See Phipson on Evidence, 14th Edition page 215). The wisdom expressed by Phipson is squarely extendable to the present case. The court, either on its own motion or upon the request of either party may call and recall witnesses for the purposes of re-examination or cross-examination if the dictates of justice and equity so demand. The central idea being that the court has to make endeavours to discover the truth. Such powers have been vested in the courts under Order XVIII rule 17 CPC.The courts can press into service section 151 C.P.C. if such requests are made at the instance of the parties.

Following the above principle in the facts and circumstances of the case in my humble view the learned trial court, having jurisdiction in the matter has not committed any illegality or material irregularity by passing the impugned order. Accordingly, this revision having 110 merits is dismissed in limine alongwith M.A. No. 917/96.

(K.K.F.)                                                                        Dismissed in limine.

 

Re-Examination is more important than examination

 PLJ 2014 Cr.C. (Lahore) 839

Present: Abdus Sattar Asghar, J.

MEHDI KHAN--Petitioner

versus

STATE, etc.--Respondents

Crl. Rev. No. 536 of 2012, decided on 19.6.2014.

Examination of witness--

----Principle--It is an established principle of law that examination of a witness would include examination-in-chief, cross-examination and re-examination in terms of Article 132 of Qanun-e-Shahadat Order 1984--Cross-examination is a continuing part, of statement rather more important than examination-in-chief.       [P. 841] A

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 439/435--Criminal revision--Credibility of a witness--There is no cavil to proposition that one of purposes of cross-examination is to test credibility of a witness--At same time object of cross-examination is to bring true facts on record which witness has either not brought on record or has deliberately concealed--In this case defence side intends to confront complainant with his previous statement for reason that in his cross-examination he has replied that he did not remember his previous statement regarding relevant fact, therefore defence has no option but to confront him with his version given in his previous statement while appearing before Court in former trial of this case--In attending circumstances, accused-petitioner cannot be denied to confront complainant with his previous statement--Trial Court in this case fell in error while refusing petitioner to confront complainant with his previous statement through impugned order which is untenable and liable to set aside.          [P. 842] B & D

PLD 2011 SC 554, ref.

Examination of witness--

----Principle--It is an established principle of law that defence side is not obliged to restrict its cross-examination only to the extent of the facts stated by a witness in his examination-in-chief rather it has a right to ask any question from a witness to impeach his credibility as well as to bring true and relevant facts on the record which the witness has either not brought on the record or has deliberately concealed. Needless to say that evidentiary value of any such statement of the witness is to be determined by the Court at the time of final judgment.     [P. 842] C

Ch. Farooq Haider, Advocate for Petitioner.

Mr. Muhammad Nawaz Shahid, DDPP for State.

Raja Muhammad Hanif, Advocate for Respondent No. 3.

Date of hearing: 5.6.2014.

Judgment

This Criminal Revision under Sections 435/439 of the Criminal Procedure Code 1898 is directed against the order dated 24.4.2012 passed by the learned Additional Sessions Judge Kharian District Gujrat whereby learned trial Court did not allow the petitioner/defence to confront Muhammad Ahmad/Respondent No. 3 who was appearing as PW-7 with his previous statement made on 04.05.2009.

2.  Brief facts leading to this petition are that the petitioner is facing trial before the learned Additional Sessions Judge Kharian as an accused in case FIR No. 334/2006 in the offences under Sections 302/148/149/109 of the Pakistan Penal Code 1860, Police Station Dinga District Gujrat. Muhammad Ahmad Respondent No. 3 complainant of the above said case FIR while appearing as PW-5 during earlier trial of the same case on 04.05.2009 in his cross-examination stated that "I made telephonic call to the police, attended by the constable. Police arrived at the spot, inspected the place of occurrence, interrogated the persons present there and also interrogated me and thereafter registered the case." During later trial Muhammad Ahmad complainant while appearing as (PW-7) on 24.4.2012 while facing the cross-examination replied the question from the defence side in the words, "I do not remember that if at earlier trial in my statement dated 04.05.2009 I got recorded that I made telephonic call to police in police station attended by the constable, then police arrived at the spot, inspected the place of occurrence interrogated the persons present there, then interrogated me and thereafter case was registered." At that stage defence side intended to confront the said witness with his above mentioned previous statement made by him on 4.5.2009 which was declined by the learned trial Court vide the impugned order dated 24.04.2012 in the following manner:

"As the PW is being examined at this trial independently and the PW has not mentioned this fact in his examination-in-chief recorded at this trial on 31.10.2011, Therefore, it cannot be considered that he had improved his statement and the statement recorded at earlier trial cannot be allowed to be confronted. Even otherwise the fact brought on the record during cross-examination cannot be considered as improvement and not to be allowed to be confronted with the previous statement of the PW. Therefore, the request of learned defence counsel is turned down."

3.  It is argued by the learned counsel for the petitioner that under Article 140 of the Qanune-e-Shahadat Order 1984 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; that the learned trial Court erred in law while declining the petitioner to confront the said witness with his previous statement dated 04.05.2009; that the impugned order being capricious, illegal is untenable and liable to set aside.

4.  On the other hand, learned counsel for Respondent No. 3 (complainant) contends that a fact brought on record by the defence himself through cross-examination cannot be equated with a previous statement in terms of Article 140 of the Qanun-e-Shahadat Order 1984 therefore the same cannot be used for the purpose of confrontation. Further contends that purpose of cross-examination is to test the credibility of a witness and not to trap the witness for the manipulation of error. Takes reliance upon Sher Muhammad and 2 others vs. The State (PLD 1995 SC 578). Also contends that the complainant while appearing in the witness-box as PW-7 in the later trial did not improve his previous examination-in-chief therefore there was no occasion for the defence to confront him with his previous cross-examination; that the learned trial Court rightly declined the defence side through the impugned order from confronting the complainant with his previous statement in cross-examination; that the impugned order does not suffer from any legal infirmity or material irregularity and jurisdictional error therefore the petitioner has no case to invoke the revisional jurisdiction of this Court.

5.  Arguments heard. Record Perused.

6.  It is an established principle of law that examination of a witness would include examination-in-chief, cross-examination and re-examination in  terms  of  Article  132  of  the  Qanun-e-Shahadat  Order 1984. Cross-examination is a continuing part, of the statement rather more important than the examination-in-chief. There is no cavil to the proposition that one of the purposes of cross-examination is to test the credibility of a witness. At the same time the object of cross-examination is to bring true facts on the record which the witness has either not brought on the record or has deliberately concealed. In this case defence side intends to confront the complainant (PW-7) with his previous statement for the reason that in his cross-examination he has replied that he did not remember his previous statement regarding the relevant fact, therefore defence has no option but to confront him with his version given in his previous statement while appearing before the Court in the former trial of this case. At this juncture it may be expedient to reproduce an extract from the dictum of the Hon'ble Supreme Court in the case of The State and others vs. Abdul Khaliq and others (PLD 2011 SC 554) which reads below:--

"--Article 140 of Qanun-e-Shahadat Order 1984 being a part of general law of evidence, has its own independent legal efficacy and application and any previous statement of the witness, which may have been made by him in some other judicial, quasi judicial, administrative, executive proceedings or inquiries or before such of the forums or even privately made through some instrument i.e. agreement or an affidavit, can be confronted to him, if relevant, in any criminal case, however, subject to its proof as stated earlier. Such statements can always be used by the defence for impeaching the credibility of a witness under Article 153(3) of the Qanun-e-Shahadat Order, 1984 as well."

It is an established principle of law that defence side is not obliged to restrict its cross-examination only to the extent of the facts stated by a witness in his examination-in-chief rather it has a right to ask any question from a witness to impeach his credibility as well as to bring true and relevant facts on the record which the witness has either not brought on the record or has deliberately concealed. Needless to say that evidentiary value of any such statement of the witness is to be determined by the Court at the time of final judgment.

7.  Case law cited by learned counsel for the respondent being distinguishable on facts is of no help to the respondent.

8.  In the attending circumstances, the accused-petitioner cannot be denied to confront the complainant with his previous statement. The learned trial Court in this case fell in error while refusing the petitioner to confront the complainant with his previous statement through the impugned order which is untenable and liable to set aside.

9.  For the above reasons this criminal revision is allowed, impugned order dated 24.04.2012 passed by the learned Additional Sessions Judge Kharian District Gujrat is set aside and the petitioner is permitted to confront Muhammad Ahmad Complainant/Respondent No. 3 (PW-7) with his previous statement made on 04.05.2009.

(A.S.)   Revision allowed

Re-Examination Allowed by Islamabad High Court

 PLJ 2015 Cr.C. (Islamabad) 3 (DB)

Present: Shaukat Aziz Siddiqui & Athar Minallah, JJ.

SHEREEN GUL alias FATIMA--Petitioner

versus

SPECIAL JUDGE, ANTI-TERRORISM COURT-I,
ISLAMABAD, etc.--Respondents

Crl. Rev. No. 52 of 2014, decided on 9.9.2014.

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 439, 161 & 540--Qanun-e-Shahadat Order, (10 of 1984), Art. 161--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Re-examination of witness--Re-summoning to make better statement amount to improve examination in chief and to fill up lacunas which would adversely affect defence version--Scope of re-examination was limited--Validity--It is mandatory for Court to summon a witness to recall and re-examine him if it appears just and essential for decision of case--After filing of complaint, some progress was made during investigation in case for payment of ransom amount and for that purpose, applicant/complainant got recorded his statement by narrating factual aspect regarding mode of payment to abductor, to that extent his deposition was not recorded before Court, therefore, it does not amount to fill up any lacuna in evidence rather essential and helpful for reaching to just conclusion of case--Order for production of a documents in order to obtain proper proof of relevant facts, in any form, at any time from any witness or form parties and also cross-examine any witness upon any answer given in reply to any such question except some exceptions provided in order--Revision was dismissed.         [P. 6] A & B

Ch. Abdul Khaliq Thind, Advocate for Petitioner.

Date of hearing: 9.9.2014.

Order

Instant Revision Petition u/S. 439, Cr.P.C., has been preferred against the order dated 10.06.2014 passed by learned Special Judge, Anti Terrorism Court, Islamabad whereby the application u/S. 540, Cr.P.C. moved by the complainant/Respondent No. 2, Azmat Khan in case FIR No. 260, u/S. 365-A, PPC, registered with P.S Ramna, Islamabad for re-examination of witness/complainant. The application u/S. 540, Cr.P.C. was moved by the witness/complainant who is the real son of the abductee namely Haji Rahim with the assertion that his incomplete statement was recorded on 24.04.2014 and no chance was given to the complainant to narrate the complete story; therefore, he may be permitted to complete his statement recorded u/S. 161, Cr.P.C. dated 15.07.2014 in Zimni No. 6. Learned Judge, Special Court (ATC-I) allowed the said application for re-examination of witness/ complainant.

2.  Learned counsel for petitioner contended that Respondent No. 2/complainant was called for evidence as PW-1 on 24.04.2014 who recorded his evidence and also cross-examined, That during the examination-in-chief PW-1 did not involve the petitioner in the commission of crime and learned Judge at the completion of his evidence verbally reprimanded the said witness for not naming/involving the petitioner, thereafter, the respondent filed an afterthought application u/S. 540, Cr.P.C. for re-examination of the PW-1 which the Respondent No. 1 accepted vide impugned order dated 10.06.2014.

3.  Learned counsel for petitioner argued that impugned order is illegal against law and facts of the case and learned trial Court fell in error while accepting the application u/S. 540, Cr.P.C. That the re-summoning of the complainant to make a better statement amount to improve his examination-in-chief and to fill up the lacunas which would adversely affect the defense version. That the scope of Re-examination is limited and placed under certain clogs, that too if certain ambiguity is sought to be removed, or certain explanation is need which is not subject of the impugned order.

Arguments heard. Record perused.

4.  For convenience sake, operative part of the impugned order dated 10.06.2014 passed by learned Special Judge, ATC-I, Islamabad is reproduce as under:--

"I have given careful consideration the available record as well arguments advanced by both sides and to observe that basically the applicant/complainant filed a complaint regarding abduction of his father namely Haji Rahim and got recorded his statement before this Court. After filing of complaint, some progress was made during investigation in the case for payment of the ransom amount and for that purposes, the applicant/complainant got recorded his statement vide Zimini No. 6, by narrating the factual aspect regarding mode of payment to the abductor, to that extent his deposition was not recorded before this Court. The arguments advanced by the defense counsel that if permission is granted for re-examination of the complainant, it will prejudice the case of the accused. I do not agree with the contention of the learned defense counsel because the complainant has joined investigation after filing of the complaint and got recorded his statement as prosecution witness, therefore, such omission for not recording his statement does not in any way fill up the lacuna of the prosecution case but the same will be helpful for reaching to just conclusion, whether the ransom amount was demanded and aid according to the prosecution version, therefore, in the interest of justice, I allow the instant application for re-examination of witness/ complainant namely Azmat Khan u/S. 540, Cr.P.C. who be summoned for the adjourned date."

For reaching to a just conclusion, Section 540, Cr.P.C. is reproduced hereunder:

"540. Power to summon material witness or examine person present.--Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case."

5.  Perusal of above provision makes it abundantly clear that in order to reach to a just conclusion, it is mandatory for the Court to summon a witness to recall and re-examine him if it appears just and essential for the decision of the case. In the present case, after filing of complaint, some progress was made during investigation in the case for payment of the ransom amount and for that purpose, the applicant/complainant got recorded his statement vide Zimini No. 6 by narrating the factual aspect regarding mode of payment to the abductor, to that extent his deposition was not recorded before the Court, therefore, it does not amount to fill up any lacuna in the evidence rather essential and helpful for reaching to the just conclusion of the case. This material fact is also mentioned in the report u/S. 173, Cr.P.C.. The law favours adjudication of cases on merit rather than technicalities and should always be interpreted in aid of justice and fairplay. Article 161 of the Qanun-e-Shahadat Order 1984, also empowers a Judge to put questions or order for production of a documents in order to obtain proper proof of the relevant facts, in any form, at any time from any witness or form the parties and also cross-examine any witness upon any answer given in reply to any such question except some exceptions provided in the order ibid. We are not persuaded with the argument of the learned Counsel for the appellant that impugned order resulted into filling up the lacunas left in the case.

6.  In view of above, by placing our reliance on case law reported as PLD 1984 S.C 95, we are of the view, that order passed by the learned Special Judge, ATC-I, Islamabad is well reasoned and no exception can be taken thereto, hence the Revision Petition is dismissed.

(R.A.)  Petition dismissed

Evidence on new matter can be given in Re-Examination

 PLJ 2016 Cr.C. (Lahore) 439

[Multan Bench Multan]

Present: Qazi Muhammad Amin Ahmed, J.

EJAZ--Petitioner

versus

STATE and 10 others--Respondents

Crl. Rev. No. 146 of 2015, heard on 15.10.2015

Dispensation of Criminal Justice--

----Scope--Adversial in nature--Clerical mistake--Rectification--Prosecution can, however, dislodge that presumption of innocence on strength of evidence to be adduced in accordance with rules of procedure--Trial of an accused is to be conducted in accord with commands of procedure; it must be least embarrassing to accused’ enabling him to conveniently and comfortably meet prosecution half way--Without being hyper-technical rules of procedure are to be faithfully followed as these constitute an integral part of due process of law which is inexorably annexed with procedural fairness.                                                             [P. 441] A

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Art. 133(3)--Evidence in criminal trial--Cross-examination--Rectification--Evidence in a criminal trial is to be recorded in a manner provided under Art. 133 of Q.S.O. which permits re-examination only in relation to explanation of matters referred to in cross-examination or with a new matter by permission of Court--Provisions of Art. 133(3) cannot be invoked for rectification of an alleged error as no such rectification is contemplated thereunder and instead at most an explanation may be solicited from a witness with regard to his deposition in cross-examination.   [P. 441] B

Ch. Saeed Ahmad Farrukh, Advocate for Petitioner.

Mirza Abid Majeed, DPG for State.

Mr. Shakil Javed Ch., Advocate for Respondents.

Date of hearing: 15.10.2015

Judgment

The petitioner, accompanied by his co-accused, is confronting indictment of homicide before a learned Addl. Sessions Judge at Chichawatni. One of the prosecution witnesses Manzoor Ahmad appeared as PW-3 and stated on oath that within his view Riaz, co-accused made two fire shots which hit Abdul Razzaq deceased on his back; this statement was made on 25-2-2015. On 31-3-2015, Manzoor Ahmad, PW-3 moved an application that injuries assigned to Riaz accused were in fact attributed by him to Ejaz, petitioner, however, due to clerical mistake, name of Ejaz found mention in the record; rectification was prayed for, contested by the petitioner, however, learned trial Judge vide impugned order dated 17-4-2015 recorded statement of Manzoor Ahmad (PW-3) afresh and thereby allowed him to rectify the alleged error through his re-examination. The defence, asked to cross-examine the witness, requested for adjournment to challenge the vires of re-examination in the High Court was declined with a forfeiture of right to cross-examination.

2.  Learned counsel for the petitioner contends that there was no occasion for the learned trial Judge to allow re-examination of Manzoor Ahmad (PW-3) on a belatedly made request and that after taking such a drastic step to the detriment of the petitioner facing a charge which may entail ultimate sentence, a reasonable opportunity ought to have been afforded to challenge the vires of impugned action before the High Court. Contrarily, the learned counsel for the complainant has defended the impugned order on the ground that it was a clerical error, rectification whereof is in consonance with the case set up by the complainant on the day one.

3.  Heard. Record perused.

4.  Our system of dispensation of criminal justice is adversarial in nature, casting primary responsibility on the prosecution to drive home charge beyond a shadow of doubt against the accused, who would confront indictment under a presumption of innocence. The prosecution can, however, dislodge this presumption of innocence on the strength of evidence to be adduced in accordance with the rules of procedure. Trial of an accused is to be conducted in accord with the commands of procedure; it must be least embarrassing to the accused’ enabling him to conveniently and comfortably meet the prosecution half way. Without being hyper-technical the rules of procedure are to be faithfully followed as these constitute an integral part of Due Process of law which is inexorably annexed with procedural fairness. Procedural safeguards are essential to procedural fairness.

Evidence in a criminal trial is to be recorded in a manner provided under Article 133 of the Qanun-e-Shahdat Order, 1984 which permits re-examination only in relation to the explanation of matters referred to in cross-examination or with a new matter by the permission of the Court. Provisions of sub-article (3) of Article 133 of the Order ibid cannot be invoked for the rectification of an alleged error as no such rectification is contemplated thereunder and instead at the most an explanation may be solicited from a witness with regard to his deposition in cross-examination. Even for the purposes of an explanation, prosecution is not to be readily obliged to fill up lacunas of its case. No doubt, the Court is vested with vast powers to allow such request, nonetheless, power of this amplitude is to be exercised with circumspection and caution and essentially in order to set the scales of justice in balance and not to bail out one of the parties before the Court. Being a neutral arbiter, Court owes no responsibility either to the prosecution or to the defence. Similarly, there was no occasion for the learned trial Judge to forfeit right of cross-examination with an unseemly haste. An accused, bracing the gallows, must be afforded a reasonable and meaningful opportunity to exclude every hypothesis of his guilt before the noose is cast around his neck. Impugned order dated 17-4-2015 is set aside, consequently proceedings drawn thereunder stand quashed. Revision allowed.

(R.A.)  Revision allowed

Re-Examination in case of further evidence

 PLJ 2018 SC 42

[Appellate Jurisdiction]

Present: Mushir Alam, Dost Muhammad Khan & Sajjad Ali Shah, JJ.

CHAIRMAN NAB--Appellant

versus

MUHAMMAD USMAN and others--Respondents

Civil Appeal No. 1085 of 2017, decided on 21.9.2017.

(On appeal from the order dated 18.4.2017 passed by
the Peshawar High Court, Peshawar in
W.P. No. 1230-P/2017)

Criminal Procedure Code, 1898 (V of 1898)--

----S. 540--Scope & Power--It empowers Court to examine any witness, present in Court or to produce any document in his possession or to summon and re-examine any person/witness already examined and it shall summon any such witness, if it is of view that its evidence or further evidence is necessarily required to each at a just conclusion by securing end justice.                                                           [P. 45] A

Examination in Chief Cross Examination & Re-examination--

----Qanun-e-Shahadat Order, 1984--S. 131, 132 & 133--Define--Prosecution witnesses or any party calling and examining witnesses is called examination in chief, while examination of same witness by opposite party is called, Cross examination, subsequent examination of same witnesses by party calling it is called Re-examination.         [P. 45] B

Administration of Justice--

----Witnesses--Duty of Court--Validity--It is primary duty of Court to safeguard interest of witnesses in a reasonable manner and they are to be protected from undue harassment. [P. 46] C

Criminal Procedure Code, 1898 (V of 1898)--

----S. 540--Duty and role of Court--Validity--It is inquisitorial, where it endeavors to discover truth, suppressed by both or one party to case to incapacitate Court to reach at just conclusion--Role of judge does not undergo change because in exercising inquisitorial powers, law has to impose obligation on it to discover truth and to secure end of justice.    [P. 46] D

Criminal Procedure Code, 1898 (V of 1898)--

----S. 540--Scope--Examination of witness--Status--Validity--Witnesses are examined as Court witness and not for prosecution or defence, therefore, none of parties to a case can claim such a right. [P. 47] E

Administration of Justice--

----Discretion--Interference by Apex Court--Principle--It is bedrock principle of law that discretion once exercised by Court vested in it by law, shall in no manner be disturbed or set aside by Courts superior in rank--This principle shall apply more vigorously in constitutional jurisdiction of High Court under Article 199, which shall be exercised sparingly and considerable restraints should be exercised in this regard. [Pp. 47 & 48] F

Administration of Justice--

----Principle--Law is written on sleeves of judges and it is primary duty of a judge to apply correct law to a case before it and even party is not bound to engage counsel for telling Court how a particular law is to be applied and how jurisdiction is to be exercised--Appeal allowed.                   [P. 48] G

Mr. Arshad Qayyum, Special Prosecutor for Appellant.

Mr. Shumail Butt, ASC for Respondents No. 1 & 2.

Date of hearing: 21.9.2017

Judgment

Dost Muhammad Khan, J.--This appeal with the leave of the Court is against the judgment of the Peshawar High Court dated 18.4.2017. The Accountability Court, Peshawar vide order dated 9.3.2017 declined request of the respondents for summoning 33 prosecution witnesses, who were already examined and cross-examined, however, it was set aside through the impugned judgment.

We have heard the learned ASC for the appellant and the learned ASC for the respondents-accused and have gone through the relevant provisions of law and also the case-laws cited at the bar.

2.  The respondents were charged for collecting huge
money from several persons, wanted to perform “Hajj”, however,
they allegedly misappropriated the same and did not perform their promise.

3.  Initially, cognizance of the case was taken by the FIA, Peshawar but then it was transferred to the NAB. The latter after conducting inquiry, converted it into investigation and at the conclusion thereof, Reference No. 2 was filed in the Accountability Court, Peshawar. At the conclusion of the prosecution evidence, the respondents accused submitted a long list of defence witnesses including 33 witnesses of the prosecution, they wanted to examine as defence witnesses, albeit these witnesses were earlier examined by the Prosecution and were cross-examined, however, no reason much less plausible was shown for such a venture.

4.  The learned Division Bench of the High Court in paras 6 & 7 of the impugned judgment has held as under:

“Under the provisions of Sections 265-F and 540, Cr.P.C. the trial Court has wide powers and the respondent accused/defence has a right to produce any witness already examined by the Prosecution and this right cannot be denied to the accused-respondent.”

To know the true meaning and import of the two provisions of law, same are reproduced as follows: -

“S. 265-F. Evidence for prosecution:

(1)      …………………………………(not relevant)

(2)      …………………………………(not relevant)

(3)      …………………………………(not relevant)

(4)      …………………………………(not relevant)

(5)      …………………………………(not relevant)

(6)      If the accused, or any one of several accused, says that he means to adduce evidence, the Court shall call on the accused to enter on his defence and produce his evidence;

(7)      If the accused or any one or several accused, after entering on his defence, applies to the Court to issue any process for compelling the attendance of any witness for examination or the production of any document or other thing, the Court shall issue such process unless it considers that the application is made for the purpose of vexation or delay or defeating the ends of justice such ground shall be recorded by the Court in writing.”

“S. 540. Power to summon material witness or examine persons present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.”

6.  Under the former provision of, Cr.P.C., it is the Prosecution to produce and examine its witnesses, who are necessary to place before the Court the true version of a case, while the accused/defence has a right to cross-examine them, which opportunity on all the 33 witnesses was fully availed by the accused-respondents.

7.  The latter provision i.e. Section 540, Cr.P.C. empowers the Court to examine any witness, present in Court or to produce any document in his possession or to summon and re-examine any person/witness already examined and it shall summon and examine any such witness, if it is of the view that its evidence or further evidence is necessarily required to reach at a just conclusion by securing the ends of justice.

8.  The production and examination of witnesses has also been explained by various provisions contained in Chapter 10 of the Qanun-e-Shahadat Order, 1984. This provision in unequivocal terms prescribes the mode and manner of examination of witnesses. The prosecution witnesses or any party calling and examining the witnesses is called, ‘examination-in-chief’ while examination of the same witnesses by the opposite party is called, ‘cross-examination’. Subsequent examination of the same witnesses by the party calling it, is called ‘re-examination’. The latter exercise is conducted with the permission of the Court whenever any ambiguity or vacuum is created in the testimony of witness/witnesses during the course of cross-examination to explain the same and not for dishonest improvement.

9.  The Courts are required to guard and protect the witnesses against undue harassment and undesirable cross-examination, not relevant to the fact in issue but directed against the witnesses by way of bush-beating, putting them to unnecessary strain and stress so that something is brought about from their mouth after they are exhausted through such undue process.

10.  The famous Jurist on the law of evidence, “Wigmore” has placed the status of the witnesses on high pedestal and has described them ‘engines and machines/essential tools’, without whose assistance and evidence the Courts would be unable to do justice or to reach at a correct conclusion therefore, he suggests that it is the primary duty of the Court to safeguard the interest of the witnesses in a reasonable manner and they are to be protected from undue harassment.

11.  The 3rd category of witnesses is called ‘Court witnesses’, who are examined or re-examined by the Court, when at trial, the Court is of the view that their evidence is essential for the just and fair decision of the case in discovering the truth. These powers have been conferred on the Court with the only object that justice is not slipped out of the hands of the Court nor it get out of its domain because doing justice in each case is the primary obligation of every Court and not the party in an adversarial system of justice. The role of the Court under the provision of S. 540, Cr.P.C. is inquisitorial where it endeavours to discover the truth, suppressed by both or one party to the case to incapacitate the Court to reach at a just conclusion. The role of the Judge does not undergo change because in exercising inquisitorial powers, the law has imposed obligation on it to discover the truth and to secure the ends of justice.

12.  From the entire scheme of above provisions of, Cr.P.C. and of the provisions of the Qanun-e-Shahadat Order, 1984, it becomes clearer than crystal that the two categories of witnesses i.e. the prosecution witnesses and the defence witnesses are distinctly placed pole apart and both cannot and shall not be intermingled.

13.  The words used, Vexation, causing delay in the trial or defeating the ends of justice are of vital connotation and discretion is vested in the Trial Court to refuse the summoning or examining any witness by the Defence if the purpose is to defeat such ends.

14.  There may be very rare and exceptional cases, where, the prosecution has dropped any material witness whose evidence, if given, may have a direct bearing on the end result of the case, in that event, the Court is blessed with unfettered powers to summon and examine such witness only for the purpose of discovery of truth, for the purpose of doing complete justice however, such powers are not to be exercised at random and without application of proper judicial mind with reasonable depth to the facts of each case. Unmistakenly, in view of the provision of S. 540, Cr.P.C. the witnesses are examined as ‘Court witnesss’ and not for prosecution or defence, therefore, none of the parties to a case can claim such a right. These powers shall only be exercised to put justice into correct channels.

15.  The discretion so vested in the Trial Court ordinarily cannot be questioned and that too in extraordinary constitutional jurisdiction unless it is shown and established that exercise of such powers by the Trial Court or by not exercising the same, has resulted into a grave miscarriage of justice, therefore, calling the witness of the other party as its own witness, even in criminal trials, already examined, is not acknowledged by the law on the subject, therefore, it is neither desirable nor such a practice can be approved. In exceptional cases, where material witness has been dropped by the prosecution in the circumstances discussed above, the Court may exercise powers with due care and caution. However, in that case too, the prosecution witness/witnesses cannot be examined as defence witnesses but Court witness/witnesses and for that, a written request is made to the Court showing cogent and convincing reasons for calling and examining any witness of the prosecution, not examined or has already been examined to be re-examined as Court witness.

16.  If the witnesses of the prosecution already examined in bulk like in this case, are called as defence witnesses u/S. 265-F, Cr.P.C. this would defeat the ends of justice besides corrupting the system of justice through intrigues. In case they make improvement in favour of the defence, making radical departure from their earlier statements, they would compromise their integrity and would also expose themselves to criminal prosecution on the charge of perjury therefore, such a course shall be avoided in all circumstances to streamline the process and to ensure that trials are not delayed and course of justice is not thwarted by such tactics and tricks.

17.  It is the bedrock principle of law that discretion once exercised by the Court vested in it by law, shall in no manner be disturbed or set aside by the Courts superior in rank. This principle shall apply more vigorously in constitutional jurisdiction of the High Court under Article 199 thereof, which shall be exercised sparingly and considerable restraints should be exercised in this regard.

18.  As held time and again that the powers of judicial review vested in High Court under Article 199 of the Constitution is no doubt a great weapon in the Judge’s hands however, the same shall not be exercised in a case where discretion is exercised by the subordinate Court/Tribunal in a fair and just manner without violating or disregarding statutory provision of law, likely to occasion the failure of justice. Ordinarily such extraordinary jurisdiction shall not be exercised at random and in routine manner. The following case law is reproduced for the guidance of the learned Judges of the High Court for future course of action:--

(i)       Brig.(Rtd.) Imtiaz Ahmed v. Government of Pakistan, through Secretary, Interior Division, Islamabad (1994 SCMR 2142)

(ii)      Shahnaz Begum v. The Hon’ble Judges of the High Court of Sindh and Baluchistan (PLD 1971 SC 677)

(iii)     Malik Shauktat Ali Dogar v. Ghulam Qasim Khan Khakwani (PLD 1994 SC 281)

19.  In our considered view, the learned Division Bench of the Peshawar High Court through the impugned judgment has certainly overstepped its jurisdiction vested in it under Article 199, probably due to lack of proper assistance at the bar, however, one cannot ignore the fundamental principle relating to administration of justice that law
is written on the sleeves of the Judges and it is the primary duty of
a Judge to apply the correct law to a case before it and even the
party is not bound to engage a counsel for telling the Court how a particular law is to be applied and how the jurisdiction is to be exercised thus, the impugned judgment being not sustainable in law, is set at naught.

According, this appeal is allowed and the impugned judgment of the Peshawar High Court dated 18.4.2017 is set aside while that of the Accountability Court is restored.

(W.I.B.)           Appeal allowed