Muhammad Ijaz Versus State

Sahibzada Asadullah, J .--- This criminal revision has been directed against the order dated 15.09.2023 passed by learned Additional Sessions Judge, Nowshera, whereby request of the petitioners to declare the DWs as hostile witnesses was declined.

2. Brief facts, forming background for filing of the instant criminal revision, are that the petitioners were involved in case FIR No. 973, dated 08.11.2018, under sections 302/324/34, P.P.C. of Police Station, Nowshera Kalan. Earlier, after conclusion of the trial, they were convicted and sentenced, however, in appeal, their convictions and sentences were set aside and, accordingly, their case was remanded back to the learned trial court for decision afresh after affording an opportunity to the petitioners for producing evidence in their defence. After remand of the case, the petitioners submitted an application for summoning of the DWs, namely, Zafar lqbal, Ubaid ur Rehman and Naseerullah under section 540, Cr.P.C which was allowed, resultantly, they appeared as DWs 3 to 4, however, during recording of their examination in chief, learned defence counsel requested the learned trial court to declare them as hostile, but his request was turned down, vide order dated 15.09.2023, hence, the instant criminal revision.

3. Arguments of learned counsel for the petitioners, learned AAG appearing on behalf of the State and counsel for the complainant heard and record of the case gone through.

4. Generally, whenever, a witness is produced by a party for recording his statement during trial, it is believed that the witness will support the party who produced him and it is the opposite party, who try to impeach the reliability of a witness by conducting a cross-examination, however, in a situation, where at the time of recording evidence, the integrity of a witness is shaken up to that extent that he is causing damage to the case of the party, who produced him, then, in such eventuality, the provisions of section 150 of the Qanun-e-Shahadat Order, 1984, would come into play, according to which, the Court may, in its discretion, permit the person who calls a witness to put any questions to him, which might be put in cross-examination by the adverse party. True that the provisions of the above said Article confer powers on court to permit a party who calls a witness to put any question, which may be put in cross-examination, but it is equally true that such discretion must be exercised with (due care, keeping in view the interests of both the parties so that no one is prejudiced from the order of the Court. The apex court in a case titled Muhammad Boota and another v. The State and another reported in 1984 SCMR 560, held that a witness who is unfavourable is not necessarily hostile, for a hostile witness is one who from the manner in which he gives his evidence, shows that he is not desirous of telling the truth to the court; that the witness answered to certain question is in direct conflict with evidence of other witnesses and is not and can never be a reason for allowing the witness to be treated as hostile and permitted to be cross-examined. So, in the backdrop of the above legal position, the statements of the above said DWs were perused and according to their statements, though, they had signed/thumb impressed the affidavits, however, they did not read its contents. Nothing was observed in their statement that either they have made any deviation from their, earlier statements or attempted to conceal material facts as the record tells that during investigation of the case one of the petitioners submitted an application to the District Police Officer concerned, which was marked to Shoukat Hayat (PW-9). The Said witness during cross-examination stated that during inquiry, the accused party produced Zafar Iqbal, Ubaid ur Rehman and Naseerullah (DWs 3 to 4) and they submitted their affidavits, which he placed on record. He further admitted that the statements of the above mentioned deponents were not recorded by him under section 161, Cr.P.C as they (deponents) were not ready to record their statements, and when their statements are not recorded previously, then how they can be declared hostile on the ground that they are telling a lie or concealing material facts. A hostile witness is the 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 in order to damage the case of the calling party while an unfavourable witness is the one who, without any hostile intention, gives evidence which is contrary to the interest of the party, therefore, in view of the facts and circumstances of the case, the discretion exercised by the learned trial court is in accordance with law which needs no inference by this Court.

5. Accordingly, for the reasons discussed above, the instant petition being without merit is hereby dismissed.

MH/16/P. Petition dismissed.