MIANDAD Versus THE STATE
This criminal miscellaneous application arises from a grievance where the trial court examined the Investigating Officer prior to other prosecution witnesses. The core legal question concerns the legality of examining the Investigating Officer out of sequence and the accused's right to recall the Investigating Officer for confrontation with statements recorded under Section 161 of the Code of Criminal Procedure 1898. The Sindh High Court held that while the prosecution has the discretion to choose the order of precedence of its witnesses and there is no absolute bar in law to examining the Investigating Officer before other witnesses, the accused must not suffer prejudice. The court ruled that if the Investigating Officer is examined prior to other witnesses, the accused retains the right to apply for recalling the Investigating Officer upon the conclusion of the prosecution evidence to confront him with the testimonies and previous statements. The criminal miscellaneous application was accordingly disposed of with specific directions to the trial court.
- Is there any bar in law to examining the Investigating Officer before other prosecution witnesses?
- Does the examination of the Investigating Officer prior to other prosecution witnesses cause prejudice to the accused?
- Does the accused have the right to recall the Investigating Officer to confront him with witness statements recorded under Section 161 of the Code of Criminal Procedure 1898?
- Section 161, Code of Criminal Procedure 1898
ORDER
1. Learned counsel for the State concedes to the proposition that in the normal course the Investigating Officer is examined in the last but there is no bar in law to examine the Investigating Officer before other prosecution witnesses are examined and it is within the domain of the party leading evidence to chose the order of precedence of its witness. However, in criminal trial the Investigating Officer is examined normally in last in order to give the accused opportunity to confront the prosecution witnesses or their testimony with the 161, Cr.P.C. statements recorded by the Investigating Officer during investigation. There is no prejudice caused to either party if the Investigating Officer, who is examined before other prosecution witness, is recalled on application of the accused.
2. The grievance of the applicant appears to be that the Investigating Officer has been examined prior to 13 others prosecution witnesses and the learned trial Court has given its mind that once the Investigating officer is examined the applicant will not be allowed to recall the Investigating officer even on making of such application. According to the learned counsel for the applicant that if the applicant is denied the opportunity of recalling the Investigating Officer in order to confront him with the evidence of the prosecution witnesses and statements under section 161, Cr.P.C. recorded by him, it will be unjust. The trial Court may examine the witness in order of precedence as the prosecution intends to but at the same time, if the Investigating Officer is allowed to be examined prior to other prosecution witnesses the applicant shall have the right to make appropriate application on conclusion of the prosecution evidence for recalling the Investigating Officer in order to confront him with the evidence of prosecution witnesses with the 161, Cr.P.C. statements of the prosecution witnesses recorded by him. The law does not debar the applicant from making such application if need so arises. This criminal miscellaneous application along with the listed application is disposed of with the direction to the trial Court that if the prosecution witnesses are examined subsequent to the examination of the Investigating Officer, the applicant shall have right to recall the Investigating Officer for the purpose of confronting him with the evidence of the prosecution witnesses with the 161, Cr.P.C. statements recorded by him.
3. H.B.T./M‑142/K Order accordingly.