Gehna Khan vs Muhammad Nawaz Etc.
The petitioner assailed the order of the trial court declining the prosecution's request to cross-examine a witness (PW-5) who omitted a material fact regarding the sealing of a recovered weapon during testimony, which he had previously stated under Section 161 of the Code of Criminal Procedure 1898. The core legal question was whether the prosecution can be permitted to cross-examine its own witness when the witness conceals a material fact. The Lahore High Court held that where a witness deliberately conceals a fact, the prosecution can be permitted to cross-examine its own witness under Article 150 of the Qanun-e-Shahadat Order 1984. The petition was allowed, setting aside the trial court's impugned order and directing the trial court to permit the prosecution to cross-examine the witness, establishing that a witness's omission of material facts previously stated permits the calling party to cross-examine them.
- Whether the prosecution can be permitted to cross-examine its own witness who omits a material fact during testimony at trial?
- Does a witness who conceals a fact during testimony lose their entire credibility?
- Can a trial court refuse permission to the prosecution to cross-examine a witness who deviates from their previous statement under Section 161 of the Code of Criminal Procedure 1898?
- Section 161, Code of Criminal Procedure 1898
- Article 150, Qanun-e-Shahadat Order 1984
JUDGMENT TARIQ SHAMIM, J. - The petitioner, who is the complainant of case F.I.R. No. 197/05, dated 25.8.2005, under sections 302/148/149, registered at P.S. Qadirpur, Has assailed the order of the learned Trial Court dated 6,7.2007 whereby the request of the learned counsel for the prosecution to cross-examine Abdul Qadoos Constable (PW-5) was declined by the learned Trial Court.
2. According to the learned counsel for the petitioner, Abdul Qadoos, Constable while appearing as PW- 5 in respect of recovery of pistol, alongwith 5 bullets from Aftab accused had not intentionally stated that the recovered weapon of crime was made into a sealed parcel and that the request made for cross-examining the witness was declined by the learned Trial Court which had resulted in gross miscarriage of justice and had caused irreparable loss to be prosecution.
3. The learned Deputy Prosecutor General has not opposed the petition.
4. The learned Trial Court while disallowing the request of the learned counsel for the prosecution observed as under:- "On 9.9.2005 during the interrogation, Aftab accused made disclosure that he can get recovered the crime weapon from his house. Accused was taken to village Bakhsha. The accused led to a room of his house and got recovered pistol P-4 from the iron box alongwith four live bullets P-5/1-4.
The accused failed to show any license. P-4 pistol alongwith live bullets P-5 were taken into possession by the I.O. Vide memo. Ex.PF. At this stage learned counsel for the prosecution requests that PW has turned hostile and he be allowed to cross-examine the PW for the reason that PW has not intentionally, stated that recovered weapon of crime and bullets was sealed into parcel- During the statement of PW, PW was spoon fed by the learned counsel, as such request for cross- examination on the PW who has disclosed all the other remaining material facts about the recovery and did not derail of his statement, u/s. 161, Cr.P.C., request is disallowed. Learned counsel for the prosecution states that he wants to assail this order, as such right of remaining examination of this PW is reserved."
5. This witness in his statement recorded under Section 161, Cr.P.C, had specifically stated that the weapon on being recovered was made into a sealed parcel in a white cloth. However, while deposing about the recovery of pistol from Aftab accused/respondent at the trial this witness for some unexplained reason did not mention that the pistol was made into a sealed parcel. I am in agreement with the learned counsel for the petitioner that where a witness deliberately conceals a fact, he can be cross-examined by the prosecution. Such a course is permissible under Article 150 of the Qanun-e-Shahadat Order, 1984. The said Article provides that a party may be allowed to put any question to its own witness which might be put in cross-examination by the opposing side.
There is no cavil with the proposition that such a witness does not necessarily lose his credibility, his evidence can be relied upon by either party and the Court can come to its own conclusion after consideration of whole of his evidence.
6. For what has been discussed-, this petition is ALLOWED and the impugned order dated 26.7.2007 is hereby set aside. The learned Trial Court is directed to permit the learned counsel for the prosecution to 'cross- examine Abdul Qadoos, Constable (PW-5). There shall be. No order as to costs . Criminal revision partially allowed.