Bashir Ahmad vs State etc.

Stereo. HC JD A 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

Criminal Appeal No. 448 of 2019.

Bashir Ahmad Versus The State and another.

JUDGMENT

Date of hearing 13.06.2019.

Appellant by: Sh. Javed Akhtar, Advocate.

State by: Ch. Muhammad Akbar, Deputy Prosecutor General with Muhammad Ali Mumtaz, Ahlmad to ASJ, Muzaffargarh with record.

SADIQ MAHMUD KHURRAM, J.:- This appeal has been directed against the order dated 09.05.2019 passed by the learned Additional Sessions Judge, Muzaffargarh vide which he allowed the application of the prosecution to recall, re-summon and examine the Niaz Ahmad Khan, ASI (PW-1)

2.Shortly narrated the facts are that Niaz Ahmad Khan, ASI (PW-1) got recorded his examination in chief on 10.04.2019 and he was cross-examined by the learned defense counsel on behalf of the appellant on the same day. Thereafter, the learned ADPP moved an application seeking to recall, re- summon and examine Niaz Ahmad Khan, ASI (PW-1) on the ground that he had not stated the correct facts. As mentioned above, the said application of the learned ADPP was accepted and Niaz Ahmad Khan, ASI, (PW-1) was ordered to be recalled, re-summoned and examined again. Hence, this appeal.

3.Learned counsel for the appellant contended that the order of the learned trial Court is violative of the provisions of section 150 of Qanun-e-Shahadat Order 1984; that appellant

stands to suffer serious prejudice if Niaz Ahmad Khan, ASI, (PW-1) is ordered to be recalled, re-summoned and examined again; that no party can be allowed to fill lacunae in their case by the learned trial court, hence, the order passed by the learned trial court dated 09.05.2019 is liable to be set-aside being against the law.

4.Conversely Ch. Muhammad Akbar, Deputy Prosecutor General, representing the State opposed the arguments advanced by learned counsel for the appellant and defended the impugned order wholeheartedly.

5.We have heard, at length arguments of learned counsel for the parties in the light of the material on the file and case law cited at the bar.

6.The whole purpose of holding a trial is the discovery of truth. The learned trial court should always remain conscious of the fact that during the trial the pursuit of truth should be paramount and is not lost sight of due to any inaction on part of any of the parties. Under the provisions of law it is for the prosecution to produce and examine its witnesses, who are necessary to place before the Court the true version of a case, while the accused/defence has a right to cross-examine them. The famous Jurist on the law of evidence, "Wigmore" has placed the status of the witnesses on high pedestal and has described them 'engines and machines/essential tools', without whose assistance and evidence the Courts would be unable to do justice or to reach at a correct conclusion. There may be very rare and exceptional cases, where, the prosecution has dropped any material witness whose evidence, if given, may have a direct bearing on the end result of the case, in that event, the court is blessed with unfettered powers to summon and examine such witness only for the purpose of discovery of truth, for the purpose of doing complete justice. The court has the due empowerment and the jurisdiction to call any witness at any stage of the trial, on its own motion and even upon an application of either of the parties. But

the question is as to what circumstances shall warrant for the exercise of the said power and/or whether a party to the trial has an absolute right, or as a matter of course can require the court to invoke its power and call a witness for the re-examination at any point of time and the stage of the proceeding, because it shall be a mere technicality to do so? The answer to the above is in the negative. In our view the parties have no such absolute right at all; the witness also should not be summoned by the court while exercising its discretion as a matter of routine, rather it all depends upon the facts of each case, as to when and why the court should exercise its discretion in this behalf for which the court has to provide judicial reasons. In this case we find that the Court has exercised its jurisdiction improperly and has given no plausible and balanced reasons for exercise of the same. This discretion is to be exercised with due caution and attention keeping in view the interests of both the parties, so that no one is prejudiced from the order of the Court. In order to make entitle a party to invoke Article 150 of the Qanun-e-Shahadat Order, 1984, it is necessary to establish that the witness is guilty of equivocation, or that he is varying in his statement, or trying to suppress the truth or that he bears animosity towards the party who calls him. It was also held by the august Supreme Court of Pakistan in case titled “Muhammad Boota and another v. The State” (1984 SCMR 560) 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’s answer 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. If the said witness, Niaz Ahmad Khan, ASI (PW-1) is re-summoned then there is a possibility that the just decision of the case would not be possible. It is possible that if the prosecution is allowed to re-summon and re-examine the Niaz Ahmad Khan, ASI (PW-1) then in fact it would be not an

exercise in the discovery of truth but rather an aberration to fill the lacunae of one party.

7.For the reasons recorded above, this appeal is allowed and the order passed by the learned trial court dated 09.05.2019 is set-aside.

(CH.MUSHTAQ AHMAD) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel

Approved for reporting.

(SADIQ MAHMUD KHURRAM)

JUDGE