RUKHSAR AHMED Versus STATE

ORDER

1. This revision petition is to challenge the validity of the order of District Court of Criminal Jurisdiction Mirpur dated 21‑2‑2000 whereby, the prosecution was allowed to confront and contradict its own witness with the statement recorded under section 161, Cr. P.C.

2. The brief facts forming the background of the present revision petition are that a murder case is subjudice before District Court of Criminal Jurisdiction Mirpur. The case is at the stage of evidence by the prosecution. A prosecution witness namely Muhammad Bashir appeared before the Court for recording his statement on 21‑2‑2001. During examination‑in‑chief the said witness was declared as hostile to the prosecution case, therefore, the trial Court allowed the Counsel for the prosecution to cross‑examine the witness. During cross- examination the learned Counsel attempted to confront and contradict the said witness with a previous statement allegedly made by the said witness before the police. The learned Counsel appearing on behalf of defence raised objection that under law the prosecution witness could not be confronted with the alleged statement made by the prosecution witness before the police. The trial Court did not accept the objection and allowed prosecution to confront its own witness with the previous statement allegedly made before the police.

3. Hence this revision petition to reverse the order of the trial Court.

4. The learned Counsel for the petitioners argued that the order of the trial Court was bad in law as it was not permissible for the prosecution to confront its own witness with the statement made under section '161, Cr.P.C during investigation. To elaborate his view‑point he relied on the case law titled Anis Mondal v. The State (PLD 1959 Dacca 36), Sona Mia v. The State (PLD 1959 Dacca 400) and Fazlul‑Haque v. The State (PLD 1959 Dacca 931) and contended that in view of the relevant law in shape of section 162 of Criminal Procedure Code and section 157 of the Evidence Act and the Judge made law as referred above, the order of the trial Court offended the law on the subject as such it was not sustainable.

5. On the other hand, it was argued by the learned Counsel for the prosecution assisted by Asstt. A.‑G (P.P.) that the scheme of examination, cross‑examination and re -examination of a witness is provided under section 1‑33 of Evidence Act and when the aforesaid provision of law is read with section 154 of Evidence Act, 1872, it becomes clear that the prosecution could not be debarred to confront or contradict its own witness with a previous statement made by him before the police. During his arguments, the learned Counsel relied on PLD 1991 Azad J&K 76.

6. I have examined the law cited at bar.

7. In the case titled "Anis Mondal v. State", (PLD 1959 Dacca 36) it was observed as under:

8. "Criminal Procedure Code (V of 1898), S. 162 read with S.157, Evidence Act. (I of 1872)‑‑‑Statement before police in course of investigation‑‑‑Prosecution ‑ has no right to prove or use it to contradict own witness or witness produced by defence. '

9. No statement made by any person to the police officer in the course of a case, can be admitted in evidence except for the limited purpose mentioned in section 162 and that, too, at the instance of the accused. The prosecution has no right whatsoever to prove the statement of the witness or to use it to contradict its own witness or the witnesses produced by the defence. It is, therefore, clear that the statement made by a witness to the police can be used only by the accused, and that also only to contradict the witness. It cannot be used by the prosecution to corroborate the statement of its own witnesses. It is true that section 157 of the Evidence Act provides that in order to corroborate the testimony of a witness any former statement made by such witness relating to the same fact is admissible in evidence, but this general rule is controlled by the special provisions of section 162, Cr.P.C. There is one clause in section 162 which provides:

10. 'When any part of such statement is so used, any part thereof may also be used in the re‑examination of such witness, but for the purpose only of explaining any matter referred to in his cross‑examination'.

11. In the case titled "Sona Mia v. The State" (PLD 1959 Dacca 400), it was observed as under:

12. "A statement made by a witness to the police under section 161, Cr.P.C can never be used by the prosecution for corroborating or for explaining any part of that witness's evidence in Court. The statement is made available to the defence only for the purpose of contradicting the witness and testing the veracity of that witness and never for any other purpose. "

13. In the case titled "Fazl‑ul‑Haq v. The State"(PLD 1959 Dacca 931), it was observed as under:

14. "Criminal Procedure Code (V of 1898), Ss. 161 & 162‑‑‑Right to contradict witness by his statement under section 161 available to accused only.

15. Section 162 of the Criminal Procedure Code, 1898 makes statements recorded in the course of an investigation by a Police Officer available only for the limited purpose of contradicting a prosecution witness at the request of the accused and of no one else. Where, therefore, the accused in the case did not seek to contradict a prosecution witness by his statement recorded under section 161 but it was the prosecution which attempted to do so, it was held that the prosecution could not do so in view of the provisions of section 162, Criminal Procedure Code, 1898.

16. Witness‑‑‑Hostile witness‑‑‑Evidence of witness cross‑examined by party calling him‑‑‑Value‑‑Evidence Act (I of 1872), S.154. "

17. In the case titled "The State v. Khizer Hayat and others", (PLD 1991 Azed J&K 76), it was observed as under:

18. "S. 133‑‑‑Examination, cross- examination and re‑examination of witness‑‑‑Scheme of.

19. The scheme of examination of witnesses is provided under section 133 of the Evidence Act, 1872. It postulate that witness shall be examined‑in‑chief by the party calling him in support of its claim. The adverse party if so desire; it allowed to cross‑examine the witness so‑called, on the facts disclosed .in the examination‑in‑chief, to dig out the truth. The scope of cross examination need not be confined to the facts to which the witness testified in his examination‑in‑chief, as the opposite‑party was free to cross‑examine the witness in the light of its own defence. The party calling the witness was clothed with a right to seek explanation of the matters referred to in cross -examination. In case new matters are introduced in re‑examination, the opposite‑party may further cross- examine upon such matters. The scheme of examination, cross -examination and re‑examination of witness provide ample scope to resolve and controversy arising out of the testimony of witness examined in Court."

20. After going through the case‑law cited by the learned Counsel for the parties, this Court respectfully subscribes to the view taken by the Hon'ble Judges in the cases referred by the learned Counsel for the petitioners. The case‑law cited by the learned Counsel representing prosecution is found to be irrelevant. Here the proposition is whether a prosecution witness when declared as hostile can be confronted with his previous statement under section 161, Cr.P.C during investigation? The law as laid down under sections 162, Cr.P.C. and 157 of Evidence Act when seen in the light of the Judgments cited by the Advocate representing defence becomes very clear. No doubt the prosecution is at liberty to cross‑examine or re‑examine its own witness when he is declared as hostile nevertheless it is not allowed to confront or contradict its own witness with the statement made by him before police during investigation.

21. The result is that the order of the trial Court is bad in law and is not sustainable in the eye of law. The revision petition stands accepted and the trial Court is directed to allow the cross‑examination by the prosecution, if so desired, and not to permit it to confront or contradict its own witness with the previous statement allegedly made during investigation under section 161, Cr.P.C.

22. H.B.T./31‑SH.C(AJ&K) Revision accepted.