PLJ 2014 Cr.C. (
Present: Abdus Sattar Asghar, J.
MEHDI KHAN--Petitioner
versus
STATE, etc.--Respondents
Crl. Rev. No. 536 of 2012, decided on 19.6.2014.
----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.
----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
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