Riaz vs Mst. Raeela and others
This criminal revision petition challenged the trial court's order declaring a prosecution witness hostile and allowing his cross-examination by the prosecution. The core legal question was whether the trial court correctly exercised its discretion in declaring a witness hostile after cross-examination had already commenced, and whether the prosecution could re-examine its own witness under such circumstances. The Peshawar High Court held that a witness can only be declared hostile during examination-in-chief, not after cross-examination by the defense, as doing so would undermine the purpose of cross-examination. The Court emphasized that there is a critical distinction between a hostile witness—one who deliberately resiles from their statement and damages the calling party's case—and an unfavourable witness, who merely provides testimony contrary to the prosecution's interest. The Court ruled that without evidence of deliberate suppression of truth or changed loyalty, the discretion to allow a party to cross-examine their own witness cannot be exercised. Consequently, the impugned order was set aside, reaffirming that the testimony of a witness, even if unfavourable, remains part of the record.
- Can a witness be declared hostile after they have already been cross-examined by the opposing party?
- What is the legal distinction between a hostile witness and an unfavourable witness?
- Does the testimony of a witness declared hostile become entirely inadmissible in court?
- Does the court have the authority to direct a person present in court to provide handwriting samples for comparison?
- Section 435, Code of Criminal Procedure 1898
- Section 439, Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Article 150, Qanun-e-Shahadat Order 1984
- Article 84, Qanun-e-Shahadat Order 1984
MUSARRAT HILALI, J. Through the instant criminal revision petition filed under sections 435/439, Cr.P.C read with section 561-A, Cr.P.C., petitioner, Riaz, has prayed for setting aside the orders dated 03.08.2021 and 08.04.2021 of learned Additional Sessions Judge-VI, Peshawar.
2. Briefly stated facts of the case are that the petitioner is an accused in case FIR No. 594 dated 22.12.2015, registered under sections 302/324/34, P.P.C., at Police Station East Cantt., District Peshawar and is behind the bars since his arrest and facing trial. During his trial, one official witness namely, Muhammad Ishaque (PW-9) was declared as hostile witness during the cross- examination without hearing the parties on legal aspect of the case and without going to the previous statement, hence, the instant revision petition.
Arguments heard and record gone through.
3. On perusal of the impugned order dated 03.08.2021, it appears that Additional Public Prosecutor made an oral request to declare the witness namely, Muhammad Ishaque as hostile on the ground that he, in his cross-examination, stated certain things which are contrary to what he has deposed in his examination-in-chief.
4. Before proceeding further, it would be appropriate 'to first see whether the witness was hostile or unfavourable to the party who called him as there is a distinction between a hostile witness and an unfavourable witness.
A hostile witness is one who, from the manner in which he gives his evidence shows that he is not telling the truth and resiles from his earlier statement given during investigation and damages the case of the calling party while an unfavourable witness is one who without any hostile intention gives evidence which is contrary to the interest of the prosecution.
5. Cross-examination is a valuable right of an accused to test the veracity and accuracy of a prosecution witness's evidence given in the examination-in-chief and to elicit from the witness any fact which may be favourable to the accused. A witness can be allowed to be treated as hostile only during examination-in-chief and not after he was cross-examined by the other party. If the opportunity of cross-examination of his own witness in such like cases is given, it would destroy the very purpose of cross-examination. No doubt, under Article 150 of the Qanun-e-Shahadat Order, 1984, the prosecution has the right to request the trial Court for declaring a witness as hostile if the witness resiles from his previous statement recorded during investigation or any other proceedings, however, the Court shall not exercise its discretion of declaring a witness hostile unless the Court is satisfied that the elements of hostility are exhibited during examination-in-chief or the witness is not speaking truth for the party he is deposing and his design is obvious then the Court by using its judicial discretion can permit cross-examination of the said witness. It may not be out of place to mention here that the testimony of a hostile witness is not totally washed out from the record of the case and that part of the statement of the witness which corroborates the prosecution version can still be taken into consideration.
6. In the instant case, the prosecution witness in an unguarded moment deposed something which is unfavourable to the prosecution, however, no such material exists on the record showing that the witness was deliberately suppressing the truth or has changed his loyalty and the intention was clear, in absence of all these circumstances, the discretion to allow the party to re-examine his own witness cannot be allowed.
7. As far as the specimen handwriting of PW-6 is concerned, it would be appropriate to reproduce Article 84(1)(2) of the Qanun-e-Shahadat Order, 1984 which reads as under:-
84. Comparison of signature, writing or seal with others admitted or proved: (1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made any signature writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.
(2) The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures' so written with any words or figures alleged to have been written by such person.
(3)........................................................
8. The aforementioned quoted Article empowers the Court to obtain signature, writing or seal of the person by whom it purports to have been written or made any signature writing or seal for the satisfaction of the Court just to arrive at right conclusion because a fair trial includes a fair opportunity to produce any defence to prove his innocence.
9. In view of the above, this petition is allowed, the order of the learned trial Court dated 08.04.2021 is set aside.