International Lawyer Law Firm: Article 140- Cross Examination of a Witness

PLJ 2020 Cr.C. (Karachi) 30

Present: Salahuddin Panhwar, J.

Mst. NAGINA BEGUM--Applicant

versus

ABDUL MAJEED ALI and 4 others--Respondents

Criminal Revision Appln. No. 189 of 2018, decided on 15.3.2019

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

----Ss. 435, 439 & 561-A--Qanun-e-Shahadat Order, 1984, Article 132, Clause-2--Question to confront contents--Not allowed as it is not exhibited in case--Cross examination of witness--Fair opportunity to examine witness and production of documents for proof--Code and provisions of QSO have made it clear that there are two categories of witnesses i.e. prosecution witnesses / complainant's witnesses and defence witnesses and both categories are distinctly placed shall not be intermingled. [P. 32] A

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

----Art. 140—Cross-examination of witnesses--Test veracity / credibility of witness--A witness may well be cross-examined as to previous statements, made by him, in writing or reduced into writing, if same is relevant--Such right has been provided because rival party may competently produce such document at his turn, therefore, right to cross-examine regarding earlier relevant statements is not subject to production of that document as per part-I of referred Article--Held: If rival wants to contradict witness, under examination, then production of earlier statement/writing, as defined by article itself, becomes necessary because legally one cannot be contradicted without showing his claimed writing....Such documents qualifying with meaning of Article ibid may well be brought on record by rival party while exercising his right of 'cross-examination' but for purpose of 'contradicting' only and not for corroboration' even if party examining witness declares him /her as 'hostile'. [Pp. 32 & 33] B & C

Illegal Dispossession Act, 2005 (XI of 2005)--

----Ss. 3 & 4--Qanun-e-Shahadat Order, 1984, Art. 140--Private complaint under Special Law--Controlling/guiding examination, cross-examination and re-examination--Decline of question referring to a document not exhibited, even said that 'It cannot be shown to witness'--High Court is quite surprised to such approach of trial Court judge which, prima facie, is in complete negation to Art. 140 of QSO--Question was posed with reference to a specific document and even contents whereof were shown--Trial Court judge was never competent to disallow such a question unless same would have been found 'irrelevant'--Since law is quite clear that mere production/exhibiting of a document is never a sufficient proof of its contents then admissibility and relevancy thereof can also be examined by trial Court at proper time by taking objection or observation on record--Impugned order set aside, revision application allowed. [P. 35] D & E

PLD 2018 SC 28, ref.

Mr. Farhad Khan, Advocate for Applicant.

Mr. Muhammad Rahib Lakho, Advocate for Respondent Nos. 1 & 2.

Mr. Faheem Hussain, DPG.

Date of hearing: 15.3.2019.

Order

Learned counsel for the applicant (accused) has challenged order of the trial Court, whereby, while cross-examination. Learned counsel referred an application to the witness filed by him in other proceedings. Further counsel attempted to confront contents but such questions were not allowed by the trial Court on the plea that since it is not exhibited in the case therefore it cannot be shown and contents cannot be put in cross-examined.

2. Heard learned counsel for the respective parties.

3. Learned counsel for the applicant (accused) has referred clause (2) of Article 132 of the Qanun-e-Shahadat Order, 1984, which is that “the examination of a witness by the adverse party shall be called his cross-examination” and further contends that trial Court was bound to allow the applicant in order to bring his case (defence plea) on record as the matter was relating to Illegal Dispossession Act and it has two effects, one is acquittal/conviction, another is judgment on property thus criminal and civil liability is to be adjudicated by the trial Court.

4. In contra, learned counsel for the Respondents (complainant) argued that applicant will be competent to bring any record during his statement (Section 342, Cr.P.C) hence, order of the trial Court is very legal. Whereas, learned DPG agitated that Article 132, sub-article (2) of Qanun-e-Shahadat Order, 1984 relates to the relevancy of document, thus applicant failed to substantiate the same.

5. At the very outset, it is relevant to mention here that the, Cr.P.C. provides a fair opportunity to either sides i.e prosecution / complainant party and defence to examine witnesses and production of documents in order to prove or disprove the charges or defence (265-F, Cr.PC). The Code and provisions of Qanun-e-Shahadat Order, 1984 have made it clear that there are two categories of witnesses i.e the prosecution witnesses / complainant's witnesses and the defence witnesses and both categories are distinctly placed shall not be intermingled. Reference, if any, may be made to the case of Chairman, NAB v. Muhammad Usman and others (PLD 2018 SC 28) wherein it is observed as:--

12. From the entire scheme of above provisions of, Cr.P.C. and of the provisions of the Qanun-e-Shahdat 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 intermingled.

6. Since, the witness of prosecution or defence legally can't be compelled to say the favouring version or document of rival side, therefore, if the law would have allowed things to be led by whims and wishes of parties then it would have never been possible for other side to test veracity / credibility of witness, under examination, by referring document which the party deliberately avoids production. To avoid such undue advantage, the legislature did include the Article 140 in Qanun-e-Shahadat Order, 1984 which reads as:--

“Article 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 reduce into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but if 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.”

From above, it is quite obvious and clear that a witness may well be cross-examined as to previous statements, made by him, in writing or reduced into writing, if same is relevant. Such right has been provided because the rival party may competently produce such document at his turn, therefore, right to cross-examine regarding earlier relevant statements is not subject to production of that document, as per part-1 of the referred Article. The legislatures, however, have maintained a balance between rights of two rivals in second part of the said Article. Per plain language of the said Article if rival party demands more than a mere referral to earlier statement/writing i.e 'to contradict' than specific attention of such a witness (under examination) to contents (parts) of such document/writing has been made mandatory by using the word 'must'. Thus, I would conclude that if rival wants to contradict the witness, under examination, then production of earlier statement / writing, as defined by article itself, becomes necessary because legally one cannot be contradicted without showing his claimed writing. I would further clarify that such documents, qualifying within meaning of Article 140 of Qanun-e-Shahadat Order, may well be brought on record by rival party while exercising his right of 'cross-examination' but for purpose of 'contradicting' only and not for 'corroboration' even if party, examining the witness declares him/her as 'hostile'. This line of distinction needs to be kept in view while dealing with such a situation. Reference may well be made to the case of Muhammad Sarfraz v. State PLD 2013 SC 386 wherein such distinction has been stamped as:--

“8. The argument 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.”

Needless to clarify that such production, however, shall never discharge the party, relying on such document, from his liability to prove the legality & admissibility thereof as per requirement of law because the Article itself made such things clear by use of phrase “before the writing can be proved”. I would further add that provision of Article 140 supra, has its own objective and relevance, hence same shall have its application on both criminal as well civil litigations.

7. Having said so, now I would revert to merits of the case. It is pertinent to mention here that this examination was in a Direct Complaint relating to Section 3 & 4 of the Illegal Dispossession Act, 2005. Needless to add that complaints, under Illegal Dispossession Act, do fall within meaning of 'criminal administration of justice' and even, per Section 9 thereof, the Code of Criminal Procedure, 1898 is applicable hence Qanun-e-Shahadat Order being controlling / guiding examination, cross-examination and re-examination, would be applicable to this Act too. Now, before attending merits of the case, it would be conducive to refer the examination-in-chief available at page-19 and cross-examination.

“Examination-in-chief to Mr. Muhammad Rahib Lakho learned counsel for complainant

I am attorney of complainant Abdul Majeed as he has been residing at Canada since 43/45 years along with family. On 09.09.2006 mother of complainant had died and complainant reached Pakistan sometime prior to that. Again complainant visited Pakistan on 28.03.2016. I produce General Power of attorney at Exh-3/A which is same, correct and bears my signature. Complainant has flat No. G-18, Mahboob Arcade near Gol Market, Hamdard Dawakhana. Complainant purchased the said flat in the year 1997. I produce photocopy of CTC of indenture of sub-lease at Exh-3/B (Original CTC seen and returned). Original was misplaced for which report was lodged at PS. I produce photocopy of NC report NO.25 at Exh-3/C (original seen and returned). After purchasing the above said flat, the complainant let out the same and went to Canada. Mother of complainant used to collect rent. The mother of complainant and his brother got the flat vacated from tenant. In the year 2016 complainant went to visit his flat and found the lock was broken. On known at the door, Nagina and her children came out. Angina is sister in law of complainant and called the complainant inside the flat and disclosed that she had no residence, therefore, she broke the lock of his flat and used to reside there. The complainant replied that she would have got his permission on which she replied that the number of complainant was not available. The complainant asked her that his number could be got from his other family members. The complainant went to P.S. Nazimabad but his FIR was not registered. Police asked the complainant o vacate the flat through Court, therefore, he filed the present case. I pray for justice.

Note: The learned counsel for accused raised objections that the advocate for complainant was putting the words in the mouth of witness. This Court observed that the learned counsel for complainant only asked the witness about the issues on which the witness deposed the details.

Cross-examination to Mr. Fahad Khan, learned counsel for accused

It is correct to suggest that Power of Attorney is not registered. It is incorrect to suggest that power of attorney did not pertain to the present case. I singed on Power of Attorney on 28.03.2016 in Court premises. Complainant is brother in law (behnoi). It is incorrect to suggest that prior to this case complainant moved application to Pakistan Rangers Nazimabad.

Note: The learned counsel for accused wanted to show photocopy of an application allegedly moved by the complainant to Pakistan Rangers from his record to the witness and cross-examined on its contents. Not allowed as such application has not been exhibited in this case, therefore, it cannot be shown to the witness and cross-examined on its contents. (Underlining is mine for emphasis)

Further cross-examination is reserved on the request of learned counsel of accused on the ground that Revision would be filed by him against the above note”.

8. Prima facie, the learned trial Court judge has declined the question merely for reason that question was referring to a document, not exhibited. The learned trial Court judge even went further by saying that: 'it cannot be shown to witness'. I am quite surprised to such approach of the learned trial Court judge which, prima facie, is in complete negation to Article 140 of the Qanun-e-Shahadat Order. The question was posed with reference to a specific document and even contents whereof were shown (attention was brought). The learned trial Court judge was never competent to disallow such a question unless same would have been found 'irrelevant'. I would further add that since the law is quite clear that mere production / exhibiting of a document is never a sufficient proof of its contents then admissibility and relevancy thereof can also be examined by learned trial Court at proper time by taking objection or observation on record. The order impugned, being in complete negation to Article 140 of Qanun-e-Shahadat Order, 1984, cannot sustain hence the same is hereby set-aside. Accordingly, instant Crl. Revision Application is allowed with directions to the trial Court to permit the accused for cross-examination. However, the trial Court would be competent to decide such defence plea in juxtaposition at the time of passing final order.