SHAUKAT ALI vs THE STATE
This constitutional petition challenged an order passed by the Additional Sessions Judge, Faisalabad, which permitted the prosecution to examine a police officer, Yousaf Ali Haral (SP Investigation), as a Court witness. The petitioner contended that because the witness was already listed in the supplementary challan as a prosecution witness, he could not be examined as a Court witness. The Court observed that the witness was indeed included in the list of prosecution witnesses. The Court held that the prosecution cannot request to call a listed prosecution witness as a Court witness to fill lacunas in its case. If the witness does not support the prosecution, the prosecutor may declare him hostile, cross-examine him, or give him up, in which case the defence may examine him. The Court emphasized that the status of a witness listed in the challan cannot be altered to that of a Court witness. Consequently, the impugned order was set aside, preventing the prosecution from circumventing standard trial procedures.
- Can the prosecution request to examine a witness listed in the challan as a Court witness?
- What is the remedy for the prosecution if a listed witness does not support the prosecution's case?
- Is it permissible for the prosecution to call a witness as a Court witness to fill lacunas in the prosecution case?
- Article 199, Constitution of Islamic Republic of Pakistan 1973
ORDER
' M.A. ZAFAR, J.---Shoukat Ali, the petitioner has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, assailing the order dated 10.2.2009, passed by the learned Additional Sessions Judge, Faisalabad whereby he allowed the request of the prosecution to examine Yousaf Ali Haral SP, Investigation as Court witness.
2. Learned counsel fore the petitioner submits that name of Yousaf Ali Haral, SP Investigation is mentioned at serial No, 18 in the calander of prosecution witnesses in the challan and thus the order passed by the learned Additional Sessions Judge directing to examine said Yousaf Ali Haral as a Court witness is illegal and unlawful
3. On the other hand, learned DPG while opposing the present petition has supported the impugned order dated 10.2.2009 passed by the learned Additional Sessions Judge, Faisalabad.
4. After hearing the learned counsel for the parties and perusing the record, I have observed that name of Yousaf Ali Haral, SP Investigation was not mentioned in the original challan and after the submission of the challan he conducted some inquiry obviously in violation of the dictum laid down by the Hon'ble Supreme Court of Pakistan in case titled Muhammad Nasir Cheema v. Mazhar Javed and others (PLD 2007 SC 31). Prosecution submitted a supplementary challan in which the name of aforesaid police official is mentioned in the calender of witnesses at serial No,
18. Since, Yousaf Ali Haral, SP Investigation is mentioned in the list of prosecution witnesses, his status will remain as a prosecution witness and prosecution cannot request to the Court to call him as a Court witness. If during the trial while making statement, he does not support the prosecution, the learned Prosecutor will be at liberty to declare him hostile and cross-examine him and even before putting him in a witness-box, prosecution can give up the said witness. In such an eventuality after being given up, defence can examine him as a defence witness but at this stage a witness who is in the list of prosecution witnesses cannot be allowed to change his status and get him examined as a Court witness. It appears that by calling the said police officer as a Court witness, prosecution intends to fill up the lacunas in the prosecution case by putting question during his cross- examination because if some one appears as Court witness, the prosecution as well as defence is art liberty to cross-examine the witnesses. Resultantly, this petition is allowed and the impugned order dated 10.2.2009 passed by the learned Additional Sessions Judge, Faisalabad is set aside.