IBRAR HUSSAIN SHAH vs STATE and 8 others
This criminal revision petition was filed under Sections 435 and 439-A of the Code of Criminal Procedure 1898, challenging a trial court order dated 22.11.2011. The core legal question concerned the procedural order of cross-examination for a court witness (CW.1) who was summoned upon the application of the defence. The petitioner, representing the prosecution side, argued that because the witness was summoned at the behest of the defence and allegedly colluded with them, the defence should be required to cross-examine the witness first. The Lahore High Court dismissed the petition, holding that the trial court's order directing the prosecution to commence cross-examination first was correct. The Court established the principle that, as a matter of established procedure, it is the duty of the prosecution to cross-examine a court witness first, regardless of which party moved the application to summon that witness. Finding no illegality or infirmity in the trial court's impugned order, the High Court maintained the decision and rejected the petitioner's request to alter the sequence of cross-examination.
- Does the prosecution have the primary duty to cross-examine a court witness regardless of which party requested their summoning?
- Can a trial court order the prosecution to cross-examine a court witness before the defence when the witness was summoned on the defence's application?
- Section 435, Code of Criminal Procedure 1898
- Section 439-A, Code of Criminal Procedure 1898
- Section 161, Code of Criminal Procedure 1898
- Section 342, Code of Criminal Procedure 1898
ORDER
By means of instant revision petition filed under Sections 435/439-A, following prayer has been made:-- "It is therefore, respectfully prayed that this petition may very kindly be accepted by setting aside the order dated 22.11.2011 and the defence may very kindly be directed to cross examine the first upon CW.1 in the interest of justice."
Learned counsel for the petitioner submits that Sadaqat Ali, CW. 1 neither joined investigation nor he recorded his statement under Section 161, Cr.P.C. before the Investigating Officer. Adds that after submission of challan/commencement of trial after production of evidence, the prosecution closed its evidence and after recording of statements under Section 342, Cr.P.C. the accused also produced defence evidence and subsequently moved application for summoning of above said witness as C.W. but the same was declined by the learned trial Court, but subsequently revision petition was accepted and ultimately said witness appeared as CW.1 and examination in chief was recorded on 19.11.2011, but the objection was' raised that the cross-examination would be conducted by the prosecution firstly and thereafter the defence will start cross-examination, but the learned trial Court vide impugned order directed the prosecution to start cross-examination on CW first. Learned counsel submits that as the CW was summoned by the learned trial Court on the application of the defence, therefore, said witness having connivance with the accused party has opted to become witness. In this scenario, learned counsel submitted that cross-examination should be conducted by the defence first and then the prosecution should be allowed in this regard.
2. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant has opposed this petition the vehemence.
3. Arguments advance pro and contra have been heard.
4. Admittedly examination in chief of Sadaqat Ali, CW. 1 was recorded by the learned trial Court on 19.11.2011. The version of the petitioner/complainant is that as the said witness has been summoned on the application of the accused/defence side, who is having connivance with them, therefore, the defence should first cross-examine him and subsequently the complainant/petitioner should be allowed to cross-examine him. As per procedure, it is duty of the prosecution to cross-examine the C.W. first, irrespective of the fact that whether the said witness has been summoned on the application of the defence or the prosecution. When confronted, learned counsel for the petitioner remained absolutely unable to point out any illegality/infirmity in the impugned order. Resultantly, the petition in hand patently devoid of any force is hereby dismissed and the impugned order dated 22.11.2011 is maintained.