Malik Mir Muhammad Khan Vs Taj Ali Khan

ra

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT'

BAI\NU BENCH

(Judicial DePartment)

W.P.No.773-B /2024

Malik Mir Muhammad Khan Versus Taj Ali Khan etc

JUDGMENT

Date of hearing: W.

Appellant-petitioner by: Mr. Nisar Khan Sokari Advocate.

Respondent/State: Mr. Sardar Naeem Khan Advocate. For State: Muhammad Asghar Ahmadzai Advocate.

ABDUL FAYAZ, t.- Through this Constitutional Petition filed under Article L99 of the Constitution of Islamic Republic of J Pakistan, 1973, petitioner Malik Mir Muhammad Khan and others have sought the following relief:-

"On acceptance of instant Writ Petition, lhis Hon'ble Court may very gracionsly be pleased to declore the respondents No.2 and 3 Le. PW-6 & PW-7 as hostile witnesses and allow the counsel for petitioner to cross examine the above named PWs.

2- Briefly stated the facts giving rise to the instant Writ Petition are that the petitioner Malik Mir Muhammad Khan brought (Sher Qadullah steno) (S.B) Hon'ble Mr. Justice Abdul Fayaz.

a Civil suit for Specific performance, Recovery of amount of Rs.23,00,000/- in alternate, declaration, recovery of amount of Rs.20,00,000/- as compensation, recovery of possession and perpetual as well as mandatory injunction against the respondents Taj ali Khan and others to the effect that petitioner has given the amount of Rs,23,00,000/- to respondent No.l in light of agreement deed dated 15-11-2018, who promised to pay the amount of Rs,2,00,000/- per month to petitioner, while in case of default, the petitioner would be entitled to recover his amount from House bearing Khata No.20, measuring O7-Marlas and 03-Sarsai, situated atMozaHinjal Sherza Khan Tehsil & Dishict Bannu. r,

3.That respondents/defendants were summoned, who d appeared before the fiial court and submitted written statement. The trial court thereafter framed (11) issues in the case. That petitioner submitted tist of witnesses on 18-01-2023 and beside the official witnesses the petitioner produced respondents No.2 & 3 namely Saadullah and Naqibullah as PW-6 & PW-7 but both the witnesses refused to record their statements on Oath. That petitioner on L2-03-2024 submitted an application before the fiial court for declaring the above named PWs as hostile witnesses. The respondents vehemently refused the plea of the petitioner and submitted reply to the application. The learned trial court after hearing the arguments of both sides, accepted the apptication of the Sher Qadullah steno (S.B) Hon'ble Mr. Justice Abdul Fayaz.

petitioner on24-06-2024 and declared Pw-4, Pw-5, PW-6 and PW- 7 as hostile witnesses and counsel for the petitioner was allowed for cross examination.

4.That respondent aggrieved from the order of learned trial court, filed Civit Revision petition before the Hon'ble District & Sessions Judge, Bannu, which was interested to the court of learned Additional District Judge-I, Bannu and he accepted the revision petition of the iespondent on 22-10-2024 and set-aside the impugned order of the trial court.

5.Arguments heard at length and record gone through.

6.The arguments of learned counsel for the parties are of three-fold, i.e., Article-l50, Article 133 of Qanoon-e-Shahadat Order, 1984, the hostile witness is said to be, when aparty calls in a wifiress to depose in its own favor, instead the witness goes against the party calling him. This situation arises in many of the cases where wifiresses do not give answers in favor of the pafty calling the person as a witness. The court has to declare the witness as a hostile one. It is not the option of the pafty calling the witness to do so. The adverse reference by the witness towards the person who calls him is a manner which helps the court to uphold or reject the statement of witness if crucial to a case and the trial. The crucial role which the witness may play in certain cases may have devastating effects if the court in those circumstances has to dispense with the testimony Sher Qadullah steno (S.B) Hon'ble Mr. Justice Abdul Fayaz.

and rely on other evidence. However, where a wifiress genuinely is malicious and answers adversely to all things questioned, or where it appears that he is maliciously trying to sabotage the case of the party calling him as a wifiress, he should then be declared a hostile witness by the court. When it is established that a witness made a prior inconsistent statement with the testimony given in court, particularly on matters related to the cenfial issues relevant to the proceeding, it will usually be in the interests of justice to permit cross-examination under Section 150 of Qanoon-e-Shahadat Order 1984. In such circumstances, as discussed above, the court has J discretion to allow the party, calling the wifiress to put question to t him as could be put in cross-examination which is only source under the law to find out the truth. Furthermore PW-6 and PW-7 had not categorically denied the existence of their overseeing fiat of putting forth their signature on ExPW-1,/| and such circumstances leads to the conclusion that their presence at the time of execution of ExPW-1/1 and their testimony as such margined wifiresses is quite manifestation of the existence of the deed EXPW-I/I. It is important to note that statement of PW-3 Wasiqa Nawees is quite naturally and it is lends corroboration to the hostile mood of PW-6 & PW-7. Keeping in view the facts that names of PW-6 & 7 are written in the said Iqrar-nama coupled with the facts name of PWs Sher Qadullah steno (S.B) Hon'ble Mr. Justice Abdul Fayaz.

mentioned in the Iqrar-nama with CNICs and if the witnesses are truthful they will be tuthful in the cross examination also'

7.The seconded limb of the impugred order compasses Article-133 of Qanoon-e-Shahadat Order, 1984 which reads as under:

(l)Witnesses shall be first examined-in- chief, then (if the adverse party so desires) cross-examined then (if the party calling him so desires) re-examined' (2) The examination and cross-examination must relate to relevant facts but the cross-examination need not be continued to the facts to which the witness M testified on his examination-in-chief.

(3)The re-examination shall be directed to the of matters referred to in cross- examinations and, if new matter is, by permission of the Cour! introduced in re-examination, the adverse party may further cross-examine that matter.

8.The purpose of re-examination is to give the witness an opportunity to explain any matter raised during cross-examination.

The object of re-examination is to offer the witress a chance to clarify any conflicting answer during his cross-examination and give him a chance to clear any uncertainty in his declaration and it must be restricted to issues raised during the cross-examination. No new issues ought to be raised without the leave of court. From the above narrated aspect of re-examination, the intention of the legislature was that when a witress was examined by a party and cross-examined by his opponent but during cross-examination certain facts were brought Shcr Qadullah steno (S.B) Hon'ble Mr. Justice Abdul Fayaz.

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on record which requires ctarification and in order to clariff or to remove ambiguity or to explain it further on the request of a party who produces the witness he may be allowed to re-examine him only to the extent as permitted by the court and after re-ex€Lmination the other party may be given a chance to cross-examine him. In the matter before this court, neither it was alleged nor prayed that PW-6 & PW-7 when cross-examined have answered some questions which resulted into certain ambiguity the clarification of which was just and necessary for which the witnesses were allowed to be re-examined' I see no justification for applying Article-l33 of Qanoon-e-Shatradat Order, 1984 in the impugned order.

g. The learned revisional court has failed to appreciate the controversy in its true perspective therefore, this petition is allowed and the order of learned revisional court is hereby set aside whereas that of the learned trial court is maintained with a slight modification to the extent of PW-6 & PW-7 and counsel for the petitioner is allowed to cross examine PW-6 & PW-7 only being hostile witnesses.

Announced. N t7 -03-2025 Sher Oadallnh steno* -Sd- Judge

JUDGE

I

Sher Qadullah steno (S.B) Hon'ble Mr. Justice Abdul Fayaz.

N.)