MIANDAD vs THE STATE
This criminal miscellaneous application addresses the procedural order of examining prosecution witnesses in a criminal trial, specifically focusing on the timing of the Investigating Officer's (IO) testimony. The core legal question is whether the prosecution may examine the IO before other witnesses and, if so, whether the accused is thereby precluded from later confronting the IO with the testimony of those subsequent witnesses. The Court held that while there is no legal bar preventing the prosecution from choosing the order of its witnesses, examining the IO first creates a potential prejudice to the accused. The ratio of the decision is that if the IO is examined prior to other prosecution witnesses, the trial court must permit the accused to recall the IO for cross-examination upon the conclusion of the prosecution's evidence. This ensures the accused retains the right to confront the IO with the statements recorded under Section 161 of the Code of Criminal Procedure 1898 and the testimony of other witnesses, thereby upholding the principles of a fair trial.
- Can the prosecution examine the Investigating Officer before other prosecution witnesses?
- Does the examination of an Investigating Officer before other prosecution witnesses preclude the accused from recalling the officer for further cross-examination?
- Is the accused entitled to confront the Investigating Officer with the statements recorded under Section 161 of the Code of Criminal Procedure 1898 after other witnesses have testified?
- Section 161, Code of Criminal Procedure 1898
ORDER
1. ' Learned counsel for the State concedes to the proposition that in the normal course the Investigating Officer is examined in the last but there is no bar in law to examine the Investigating Officer before other prosecution witnesses are examined and it is within the domain of the party leading evidence to chose the order of precedence of its witnesses. However, in criminal trial the Investigating Officer is examined normally in last in order to give the accused opportunity to confront the prosecution witnesses or their testimony with the 161, Cr.P.C. Statements recorded by the Investigating Officer during investigation. There is no prejudice caused to either party if the Investigating Officer, who is examined before other prosecution witness, is recalled on application of the accused.
2. ' The grievance of the applicant appears to be that the Investigating Officer has been examined prior to 13 others prosecution witnesses and the learned trial Court has given its mind that once the Investigating Officer is examined the applicant will not be allowed to recall the Investigating Officer even on making of such application. According to the learned counsel for the applicant that if the applicant is denied the opportunity of recalling the Investigating Officer in order to confront him with the evidence of the prosecution witnesses and statements under section 161, Cr.P.C. Recorded by him, it will be unjust. The trial Court may examine the witness in order of precedence as the prosecution intends to but at the same time, if the Investigating Officer is allowed to be examined prior to other prosecution witnesses the applicant shall have the right to make appropriate application on conclusion of the prosecution evidence for recalling the Investigating Officer in order to confront him with the evidence of prosecution witnesses with the 161, Cr.P.C. Statements of the prosecution witnesses recorded by him. The law does not debar the applicant from making such application if need so arises. This criminal miscellaneous application along with the listed application is disposed of with the direction to the trial Court that if the prosecution witnesses are examined subsequent to the examination of the Investigating Officer, the applicant shall have right to recall the Investigating. Officer for the purpose of confronting him with the evidence of the prosecution witnesses with the 161, Cr.P.C. Statements recorded by him.