Form No:HCJD/C-121

ORDER SHEET
LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
Case No. Criminal Revision No.57092 of 2020

Muhammad Asif Versus Amjad Ali, etc

S.No. of order/ Date of order/ Order with signature of Judge and that of
Proceedings Proceedings Parties of counsel, where necessary.

01) 09.11.2020 Mr. Asif Javed Qureshi, Advocate for the petitioner.

The petitioner assails the order dated

13.10.2020, passed by learned Additional

Sessions Judge, Lahore whereby the application

filed by the petitioner seeking permission to cross-

examine Muhammad Ashraf, PW.1, examined

during trial of case F.I.R. No.97/2015 dated

06.03.2015, under section 302, 109, 34, P.P.C.,

Police Station Hair, Lahore, was dismissed.

2. The facts, in brief, are that during trial of

above mentioned case, the complainant, namely,

Muhammad Ashraf was examined as PW.1 on

10.12.2018, however, on 07.03.2020, during the

cross-examination, he had not supported the

prosecution story, thus, on the same day, the

application was filed by the petitioner and real

brother of the deceased, namely, Rehmat Ali, not a

party to these proceedings forwarded by the

learned Deputy District Public Prosecutor seeking

permission to declare PW.1 as hostile so that he

could be cross-examined by the petitioner.

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3. Learned counsel for the petitioner contends

that the application was filed by the petitioner on

the same day; that both the parties should be

provided fair and adequate opportunity to put and

prove their case before the Court; that the

petitioner being real nephew of the deceased was

within his rights to move the application but the

learned trial court observed otherwise and

proceeded to dismiss the petition on erroneous

assumption of law, thus, the impugned order is

liable to be set aside. To augment his contentions,

learned counsel relied upon “Dahyabhai

Chhaganbhai Thakkar v. State of Gujarat” (AIR

1964 SC 1563) and “Mukhtar Ahmad v. The

State” (2003 SCMR 1374).

4. After hearing the learned counsel for the

petitioner and perusing the available record, it

was noticed that the examination-in-chief of PW.1

was recorded on 10.12.2018 and he was cross-

examined on 07.03.2020. On the same day, an

application was filed by the petitioner and Rehmat

Ali to declare the said witness being hostile. It

was asserted in the said application that PW.1

connived with the opposite party and was won

over and, thus, be declared hostile.

5. A hostile witness is someone who appears to

be refusing to tell the truth in a court of law or one

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who, by his actions or statements, is contrary to

the party who called him. Witnesses provide what

are known as “pre-trial statement”, which are

statements that essentially sum up the relevance

of that witness to that particular case. Included in

the statements are the facts and evidence that a

witness agrees to provide in open court at the trial

of the case.

6. A witness is declared as hostile, however,

when his account under oath changes significantly

from that which was provided in his pre-trial

statement. For example, a hostile witness can no

longer be trusted, and, as such, his own attorney

can treat him as if he was working for the

opposition and can question him accordingly.

7. Hostile witness can only be declared as

such by a court, though it is generally at the

request of the attorney posing the questions. In

determining who can be considered a hostile

witness, the court decides, based on the witness

demeanor and credibility, if the witness should, in

fact, be treated as hostile. The court can also rule

that the witness is unfavourbale witness, not a

hostile witness. This means that, just because the

witness is providing unfavourable evidence, it

does not mean he is doing so in an effort to be

vindictive.
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8. When a witness is declared as hostile, he is

being accused of contradicting his pre-trial

statement. When a party suspects a witness of

being hostile, it makes an application to the court

asking to treat the witness as hostile and if the

request is allowed then the person who took to

pre-trial statement is asked to prove before the

court that the statement was made. It is settled

principal of criminal administration of justice that

the Court may permit re-examination of a witness

if considered proper and necessary on a material

question which has been omitted by the

prosecution to bring on record in his examination-

in-chief but the prosecution is not allowed to cross-

examine the witness after cross-examination of

defence in respect of the facts narrated by him

either in his examination-in-chief or cross-

examination. The order of examination-in-chief

and cross-examination of a witness find

mentioned in Article 133 of Qanun-e-Shahadat,

1984.

133. Order of examination.

i. Witnesses shall be first examined-in-
chief, then (if the adverse party so
desires) cross-examined, then (if the
party calling him so desires) re-
examined.
ii. ……………….
iii. The re-examination shall be directed
to the explanation of matters brought
on record during cross-examination
and if new matter is by permission of
the Court, introduced in re-
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examination, the adverse party may

further cross-examine that matter.

9. The hostility is a terms which is relevant to

the statement in examination-in-chief and if a

witness is allowed to be cross-examined by the

prosecution after the cross-examination by the

defence, the purpose of right of cross-examination

would be defeated and provision of Article 133

and 151 of Qanun-e-Shahadat, 1984 relating to

the examination and cross-examination of a

witness would be negated. The credibility of a

statement of a witness may be permitted to be

impeached by the prosecution of its own witness,

if, his statement in examination-in-chief is in

deviation to his previous statement or the

statements is adverse to the interest of

prosecution but no such permission can be

granted to the prosecution on the basis of

averment of the statement of witness in cross-

examination by defence. The logic of law is not in

favour of grant of permission to the prosecution to

cross-examine a witness after being cross-

examined by the defence, to impeach the

credibility of his statement made by him during

cross-examination.

10. The court is empowered, at any stage, to

recall a witness for re-examination for the removal

of any doubt regarding facts if dictates of justice

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and equity so demands but such permission

cannot be granted to either party to fill in lacunae

in the case or to cover a gap in the evidence

adverse to the interest of other party. The law

having taken care of the situation in which an

ambiguity is created in the statement of a material

witness, has empowered the court under section

540, Cr.P.C. to recall a witness for re-examination

and permit the adverse party to cross-examine the

witness after re-examination.

However, the discretion is vested with the

Court to grant permission to cross examine or

otherwise. Normally when the Public Prosecutor

requested for permission to put cross questions to

a witness called by him the courts used to grant it,

and if the Public Prosecutor had sought permission

at the end of the examination-in-chief itself the

trial court is having no good reason for declining

the permission sought for. But in this case, the

petitioner or the Public Prosecutor did not do so at

appropriate stage.

11. As mentioned above grant of permission

prayed for is in the discretion of the trial court to

be exercised in a judicious manner as observed in

the case titled “Gura Singh v. State” (AIR 2001

SC 330), the relevant observations read as under:

“Section 154 authorized the Court in its

discretion to permit the persons who
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calls a witness to put any question to

him which might be put in cross-
examination by the adverse party. The
Courts are, therefore, under a legal
obligation to exercise the discretion
vesting in them in a judicious manner by
proper application of mind and keeping
in view the attending circumstances.
Permission for cross-examination in
terms of section 154 of the Evidence Act
cannot and should not be granted at the
mere asking of the party calling the
witness.”

12. In the case titled “State of Bihar v. Lalu

Prasad alias Lalu Prasad Yadav” (AIR 2002 SC

2432), the prosecution did not seek permission to

cross-examine a hostile witness during the

statement. Such permission sought later on, was

refused. This question also came up before

learned Division Bench of the Court in case titled

“Bashir Ahmad v. The State and another” (PLD

2019 Lahore 594) and the relevant observations

of their lordships appearing in para 6 of the

judgment read as under:

“…The court has the due empowerment

and the jurisdiction to call any witness
at any stage of trial, on its own motion
and even upon an application of either of
the parties. But the question is as to
what circumstances shall warrant for
the exercise of the said power and/or
whether a party to the trial has an
absolute right, or as a matter of course
can require the court to invoke its power
and call a witness for the re-examination
at any point of time and the stage of
proceedings, because it shall be a mere
technicality to do so? The answer to the
above is in the negative. In our view, the
parties have no such absolute right at
all; the witness also should not be
summoned by the court while exercising
its discretion as a matter of routine,
rather it all depends upon the facts of
each case.”
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Referring to the law laid down in

“Muhammad Boota and another v. The State”

(1984 SCMR 560), their lordships observed as

follows:

“…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 witnesses answer to certain
question is in direct conflict with
evidence of other witnesses and
is not and can never be a reason
for allowing a witness to be
treated as hostile and permitted
to be cross-examined….It is
possible that if the prosecution is
allowed to re-summon and re-
examine Niaz Ahmad Khar, ASI
(PW-1) then in fact it would not be
an exercise in the discovery of
truth but rather an aberration to
fill the lacunae of the one party”

13. Reverting to the merits of this case it was

observed that in para No.3 of the application filed

by the petitioner seeking permission for re-

examination, the petitioner asserted connivance

between the complainant, namely, Muhammad

Ashraf (PW-1) and the accused but the application

of the petitioner is silent regarding details of said

connivance. It was asserted that the deceased,

namely, Atta Muhammad alias Naiko was real

paternal uncle of the petitioner. Admittedly, the

petitioner is a witness of the case as mentioned in

the preceding para, however, it is to be seen if he

is a party to the proceedings as word “party” find

mentioned in Article 150 of Qanoon-e-Shahadat,

1984. I considered it proper to have dictionary

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meaning of word “party” as the word “party” has

not been defined in Qanun-e-Shahadat, The Code

of Criminal Procedure and The General Clauses

Act, thus, dictionary meaning of a word can be

ascertained to have correct interpretation. In

Webster’s Third New International Dictionary

word “party” denotes one directly disclosed by

record to be so involved in the prosecution of

defence of a proceeding as to be bound by the

decision or the judgment therein; one indirectly

disclosed by the record as being directly

interested in the subject matter of a suit or as

having power to make a defence or control the

proceedings or appeal from the judgment.

In Corpus Juris Secundum, it has been

defined as follows:

“With reference to judicial proceedings,

the word “party” is generally used as
meaning one of two opposing litigants,
he or they by or against whom a suit is
brought, whether at law or in equity, the
plaintiff or defendant, whether natural
or legal persons.”

14. According to Bouvier’s Law Dictionary,

“parties” in law may be said to be those united in

interest in the performance of an act. In advanced

law lexican P. Ramanatha Aiyar’s, the word

“party” is defined as under:

“When the word “party” is used, its

primary meaning is a litigant. It means a
person who is a part to play in the
proceedings and word “party” includes
not only private parties but also the
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State if it happens to be the party as in

police cases.”

Having surveyed the above definitions, I am

of the view that the petitioner may be relative of

the deceased and a witness of the case but not a

party to the proceedings.

15. It is also pertinent to mention that in cases of

homicide the personal right to recover

compensation by way of “Diyat or Khoon Baha” is

vested in legal heirs of the deceased recognized by

Islamic Sharia. All such cases are now

compoundable by the legal heirs/victim as

mentioned in the table given under section 345,

Cr.P.C. So in the prevailing legal system, legal

heirs of the deceased also have some rights in

their personal capacity to look after prosecution

but no other person be he a witness or related to

the deceased.

Learned counsel for the petitioner after

consulting the record apprised that the deceased

was 45 years old and married. Referring to list of

legal heirs of the deceased, he conceded that the

petitioner was not amongst legal heir of the

deceased. It may further be observed that the

application was not filed or moved by the

complainant but was simply forwarded by

Prosecutor. The application was also not filed at

an appropriate stage and no request was made by

the complainant or any legal heir of the deceased

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for invoking powers of the Court under Article 150

of the Qanun-e-Shahadat, 1984.

16. As mentioned above, the petitioner in this

case is only a witness. He is not amongst the legal

heirs and thus had no locus standi to file

application for such declaration. The judgments

relied upon by the learned counsel for the

petitioner have distinguishable facts and are not

applicable to this case. The impugned order is

based on sound reasons. No illegality or perversity

was found therein, warranting interference of this

Court.

17. For the foregoing reasons, there is no merit

in this petition, which is hereby dismissed.

(SARDAR AHMED NAEEM)

JUDGE

‘Arif Ali’

Approved for reporting.

JUDGE