Jalal Ahmad Vs Bilal etc

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department) Criminal Revision No. 120-P/2026.

Date of hearing: 15.06.2026.

Mr. Shabbir Hussain Gigyani, advocate, for the petitioner

Mr. Abdul Rauf Afridi, Addl. AG for the State.

Nemo for the respondent.

JUDGMENT

SAHIBZADA ASADULLAH, J.- Through the instant Criminal Revision, the petitioner has called in question the order dated 10.02.2026 passed by the learned trial Court, whereby the objection raised by the learned counsel for the complainant was accepted and permission was granted to cross-examine the witness on the ground that he had resiled from and deviated from his earlier statement.

Consequently, the complainant was allowed to treat the witness as hostile and to confront him through cross- examination.

2.The present case raises questions that travel beyond the confines of a procedural provision and touch the very philosophy of the law of evidence. Courts have, through centuries, grappled with a recurring difficulty:

what is to be done when a witness, having entered the witness-box under the expectation that he would assist the

Court in the ascertainment of truth, abandons his earlier position, suppresses material facts, or assumes an attitude averse to the party who summoned him? It is from this practical challenge that the doctrine of a hostile witness emerged and gradually evolved into a recognized instrument of judicial administration.

3.The controversy before this Court is not merely whether a witness may be declared hostile, but also who may seek such a declaration, what circumstances justify the exercise of such power, and whether the jurisdiction of the Court is confined to the stage of examination-in-chief or extends to any point during the witness's testimony, including cross-examination where the witness first manifests hostility or materially departs from his previous version. Resolution of these questions necessarily requires an examination of the historical origins of the doctrine, the rationale underlying its incorporation into modern evidentiary law, its development across different legal systems, and the scope and object of Article 150 of the Qanun-e-Shahadat Order, 1984.

The Court is mindful that hostility does not always reveal itself at the commencement of testimony. A witness may maintain apparent consistency throughout examination-in-chief and yet disclose a fundamentally altered position only when subjected to cross-examination.

Equally, a witness may furnish concessions favourable to

the opposite side not because he has abandoned the truth but because skillful advocacy has exposed inaccuracies, exaggerations, or weaknesses in his account. The law must therefore distinguish between a witness who has become hostile and a witness who has merely been effectively cross-examined. A concession extracted through legitimate forensic skill cannot, by itself, justify a declaration of hostility. Were the law otherwise, every successful cross- examination would become a ground for invoking Article

150.The Court must therefore inquire whether the answer given represents a truthful acknowledgment elicited through proper questioning or whether it constitutes a conscious and unexplained departure from an earlier position. The decisive inquiry is not whether the evidence has become unfavourable, but whether the witness's conduct demonstrates an unwillingness to disclose the truth.

This distinction finds support in the development of the common law itself. The English courts repeatedly emphasized that hostility is not established merely because a witness gives evidence averse to the party calling him. In R v. Figliola [2011 ONCA 457], the Canadian Court of Appeal for Ontario recognized that adversity of evidence and hostility of disposition are not necessarily synonymous concepts. Likewise, under section 3 of the Criminal Procedure Act, 1865 (UK), commonly known as Denman's

Act, the power to treat a witness as adverse was conferred not because his evidence proved unfavourable but because his conduct demonstrated a departure from the duty of truthful disclosure. The statutory language itself reflected the concern that the Court must be satisfied that the witness has proved adverse before the exceptional power may be invoked. The distinction has remained a constant feature of modern evidentiary law.

The same principle is discernible in Indian jurisprudence. In Sat Paul v. Delhi Administration (AIR 1976 SC 294), the Supreme Court explained that the grant of permission under section 154 of the Indian Evidence Act does not rest merely upon the circumstance that the testimony has damaged the case of the party calling the witness. Rather, the true inquiry concerns the witness's attitude, conduct, and veracity, and whether his testimony indicates a departure from the obligation of truth. The Court observed that the power is intended to serve the cause of justice and to enable the Court to reach the truth whenever the conduct of the witness renders further testing of credibility necessary. The power to permit the cross- examination of one's own witness is undoubtedly discretionary, but that discretion must be exercised upon objective considerations. The Court should ordinarily examine: (i) whether the witness has materially departed from a previous statement on a matter of significance; (ii)

whether the departure appears deliberate, evasive, or calculated to assist one side of the litigation; (iii) whether the altered version has caused genuine surprise to the party calling the witness; (iv) whether the inconsistency is capable of innocent explanation; and (v) whether the interests of justice require further testing of the witness through questions ordinarily permissible in cross- examination. Hostility is therefore not established merely because evidence is unfavourable. Material inconsistency is more significant than a minor discrepancy. Concessions extracted through legitimate forensic skill do not by themselves establish hostility. The Court must determine whether the witness has consciously departed from a previous position. Where such a departure is established and renders further scrutiny necessary in the interests of justice and the discovery of truth, the jurisdiction under Article 150 becomes available. This approach accords with Article 150 of the Qanun-e-Shahadat Order, 1984, whose object is not to reward forensic success or compensate for evidentiary weakness but to provide the Court with a mechanism for testing credibility whenever the conduct of the witness threatens the integrity of the fact-finding process.

4.The Court would accordingly hold that the doctrine of hostile witnesses is not a doctrine about procedural stages but a doctrine about the reliability of

testimony. Hostility is determined not by the point at which it manifests itself but by the conduct through which it is revealed. A witness is not hostile because he weakens a case; he becomes hostile when he abandons the obligation of truth. The power contained in Article 150 is therefore available whenever the Court is satisfied that the witness has consciously and materially departed from a previous position, whether such departure emerges during examination-in-chief, cross-examination, or at any other stage of his testimony. The controlling consideration is not the convenience of the parties but the Court's enduring duty to ensure that justice is founded upon truth rather than appearance.

This conclusion derives support not only from principle but also from comparative authority. Section 154 of the Indian Evidence Act, 1872, from which Article 150 of the Qanun-e-Shahadat Order substantially derives its language and structure, authorizes the Court, in its discretion, to permit the person calling a witness to put any questions which might be put in cross-examination by the adverse party. Significantly, neither provision imposes any temporal restriction upon the exercise of that discretion.

The absence of such limiting language is itself indicative of legislative intent. Had the legislature intended to confine the power to examination-in-chief alone, it could easily have done so in express terms. Instead, the statutory

emphasis is placed upon the satisfaction of the Court and not upon the stage of the proceedings. The interpretation that the Court is inclined to adopt also finds substantial support from Indian jurisprudence, which has examined the doctrine with considerable depth. In Sat Paul (supra), the Supreme Court of India observed that the power to permit a party to cross-examine its own witness is founded upon the necessity of discovering the truth and ought not to be constrained by technical considerations inherited from the older common-law approach. The Court described the discretion conferred by section 154 as wide and untrammelled and emphasized that the provision exists to enable the truthfulness of testimony to be effectively tested whenever the conduct of a witness renders such testing necessary. In the considered view of this Court, the reasoning in Sat Paul supports the broader proposition that the doctrine of hostility must be understood as a means of protecting the truth-finding process rather than as a procedural privilege available only at a predetermined stage of examination.

A similar principle emerges from Dahyabhai Chhaganbhai Thakkar v. State of Gujarat (AIR 1964 SC 1563), wherein the Supreme Court recognized that the statutory power is not confined to any particular stage of the examination of a witness and may be exercised whenever circumstances justify its invocation. The Court

observed, in substance, that the grant of permission depends upon the facts and circumstances disclosed before the Court and not upon any rigid procedural formula. The importance of the decision lies in its rejection of a stage- centric approach. The Court implicitly acknowledged that human conduct cannot be compartmentalized according to procedural sequence. A witness may disclose hostility at the very outset, during examination-in-chief, during cross- examination, or even upon further examination. To make the availability of judicial power dependent upon the fortuitous stage at which such hostility manifests itself would be to subordinate substance to form. This Court respectfully finds itself in agreement with that reasoning.

The same philosophy is reflected in modern common-law jurisdictions. Rule 607 of the Federal Rules of Evidence of the United States provides that “any party, including the party that called the witness, may attack the witness’s credibility,” thereby abandoning the historical voucher theory and recognizing that credibility is a matter for judicial scrutiny whenever circumstances so require.

Likewise, Canadian jurisprudence has consistently emphasized that evidentiary rules must be interpreted in a manner conducive to the search for truth. In R. v. B. (K.G.)

[1993] 1 S.C.R. 740, the Supreme Court of Canada reiterated that the truth-seeking function of the trial constitutes the governing principle of evidentiary law and

that procedural doctrines must ultimately serve that objective. The comparative jurisprudence, therefore, converges upon a single proposition: hostility is a question of substance rather than sequence. The jurisdiction to invoke Article 150 arises not because a particular stage of examination has been reached, but because the conduct of the witness has disclosed circumstances rendering the ordinary testing of credibility inadequate. Once such circumstances appear, whether during examination-in- chief, cross-examination, re-examination, or at any other point before the witness is discharged, the Court remains empowered to act. Any contrary interpretation would elevate procedural chronology above the administration of justice and would frustrate the very purpose for which the doctrine of hostile witnesses evolved throughout the common-law world.

5.The cumulative effect of these authorities is that the doctrine has progressively evolved from a narrow procedural exception into a substantive instrument for safeguarding the reliability of evidence. As observed by the Supreme Court of India in Bhagwan Singh v. State of Haryana (1976) 1 SCC 389, the statutory power is intended to enable the Court to ascertain the truth when the conduct of a witness demonstrates that ordinary examination is no longer sufficient for testing the reliability of his testimony.

Likewise, in Rabindra Kumar Dey v. State of Orissa (1976)

4 SCC 233, it was emphasized that hostility is not to be inferred merely because evidence becomes unfavourable;

rather, the Court must examine the attitude of the witness and the effect of his testimony upon the truth-finding process. What emerges from the jurisprudence is that the Court is required to focus not upon the chronology of testimony but upon its credibility. The decisive question is not when the witness departed from his previous position, but whether such departure has in fact occurred and whether it is of such a nature as to require further testing through the mechanism contemplated by Article 150. The Court is, therefore, persuaded that the true ratio flowing from these authorities is that hostility is a matter of conduct and not of timing. Once a witness demonstrates a conscious unwillingness to adhere to a version previously maintained, suppresses material facts, or adopts a position indicative of evasion or unreliability, the Court's jurisdiction becomes available irrespective of the procedural stage at which such conduct first becomes apparent. To hold otherwise would permit the effectiveness of the law to depend not upon the conduct of the witness but upon the order in which questions happen to be asked. Such an approach would run contrary to the settled principle that procedural rules are servants of justice and not its masters. As observed by the England & Wales Court of Appeal in Jones v. National Coal Board [1957] 2 QB 55, the object of judicial

proceedings is to ascertain the truth and to do justice according to law; procedural requirements are intended to facilitate that objective and not to defeat it.

6.Before adverting to the merits of the controversy, it is appropriate to notice the principles governing the declaration of a witness as hostile. The Honourable Supreme Court in Ghous Baksh v. The State (2025 SCMR

547)has clarified that mere retraction by a witness from an earlier statement does not, by itself, furnish a sufficient basis for declaring him hostile. The Court drew a clear distinction between retraction and hostility. This distinction is deeply rooted in evidentiary jurisprudence. In Syad Akbar v. State of Karnataka (AIR 1979 SC 1848), the Supreme Court of India observed that inconsistencies in testimony differ in nature and significance and that the Court must distinguish between ordinary discrepancies attributable to human fallibility and departures affecting the substance of the case. Retraction may only denote a withdrawal from, or inconsistency with, an earlier version, whereas hostility imports something more: an attitude averse to the party calling the witness, reflected through a conscious and material departure from the truth or from the case sought to be established by that party. Thus, whether a witness has turned hostile is not to be determined mechanically or merely on account of some inconsistency, but upon an examination of the substance of his testimony

as a whole, the nature of the departure made by him, and the surrounding circumstances of the case.

When the testimony of the witness in the present case is examined in the light of the above principle, it becomes evident that the matter was not one of a minor contradiction, casual omission, or insignificant retraction.

During his examination-in-chief, the witness supported the prosecution's version and specifically implicated the accused persons. However, during cross-examination, he recanted the most material and incriminating part of his earlier testimony, stating that he had not seen the accused persons firing. This departure went to the very root of the prosecution's case, as it related directly to the identity and role of the assailants. It was, therefore, not a deviation on a peripheral or collateral aspect, but a substantial retreat from the core allegation on which the prosecution's case rested.

The legal effect of such a material departure was that the witness substantially diluted, impaired, and contradicted the incriminating force of his examination-in-chief. Such a departure strikes at the very rationale underlying Article 150 of the Qanun-e-Shahadat Order, 1984. The provision is not concerned with immaterial discrepancies or ordinary failures of recollection; rather, it is directed towards situations in which the reliability of testimony itself becomes suspect. In such circumstances, the learned trial Court was justified in forming the opinion that the witness

had adopted a position averse to the prosecution and that it was necessary to permit the prosecution to confront him with his previous version in terms of Article 150 of the Qanun-e-Shahadat Order, 1984. A careful juxtaposition of the witness's statement recorded under Section 161 Cr.P.C., his examination-in-chief, and his subsequent cross- examination reveals a discord so pronounced and so fundamental that it cannot escape judicial notice. In his earlier versions, the statement furnished before the Investigating Officer and the testimony tendered in examination-in-chief, the witness had spoken in clear, categorical, and unequivocal terms. He unreservedly implicated the accused persons in the commission of the offence and left no room for speculation regarding their identity or participation. Significantly, at no stage did he allude to darkness, impaired visibility, uncertainty of recognition, or any circumstance capable of casting even the faintest shadow of doubt upon his ability to identify the assailants. His account, as then narrated, was singular in its clarity and unwavering in its certainty.

Yet, when the crucible of cross-examination arrived, the witness sought to clothe himself in an altogether different narrative. For the first time, he invoked the plea of darkness and attempted to engraft upon the record an uncertainty regarding identification a proposition wholly alien to his earlier versions and irreconcilable with

the certainty he had previously professed. Such a transformation is too abrupt to be accidental, too material to be inconsequential, and too conveniently timed to be dismissed as a mere lapse of memory or an innocuous inconsistency. Human recollection may falter on peripheral details; it does not ordinarily oscillate so dramatically on facts that strike at the very heart of the occurrence. The Court cannot remain unmindful of the fact that the witness had, by his own earlier statements, foreclosed every avenue of doubt concerning the identity of the accused. Having once spoken with certainty, his subsequent endeavour to resurrect uncertainty appears not as a search for truth but as a retreat from it. The change is neither subtle nor inadvertent; it bears the unmistakable imprint of a conscious and calculated attempt to dilute the incriminating force of his earlier testimony and to carve out an unwarranted concession in favour of the accused.

7.The attempted departure from truth is so palpable, and the shift in stance so deliberate, that it leaves little room for any inference other than that the witness consciously chose to abandon the path of candor in favour of expediency. Courts of law, however, are not passive repositories of whatever version a witness may choose to advance at different stages of the proceedings. The judicial function is not exhausted by the mere recording of testimony; it extends to the solemn and often arduous duty

of discerning truth amidst contradiction, of separating the genuine from the contrived, and of ensuring that justice is not sacrificed at the altar of convenience or compromised by calculated vacillations. A criminal Court, entrusted as it is with the administration of justice, cannot permit the sanctity of its process to be undermined by testimony fashioned to suit shifting loyalties or changing inclinations.

It is precisely in the discharge of this solemn duty that the learned trial Court exercised its discretion. Far from acting precipitately or exceeding the bounds of law, the Court below displayed commendable circumspection in appreciating the witness's conduct in its proper perspective and in refusing to accord credence to a version bereft of consistency and devoid of the ring of truth.

Having regard to the entirety of the

circumstances, this Court is left with no room for hesitation in holding that the witness was rightly declared hostile.

Indeed, his conduct transcends the technical contours of hostility as understood in the law of evidence. The record unmistakably reveals a conscious departure from truth, animated by an evident desire to shield the accused and to frustrate the due course of justice. Testimony so manifestly tailored to serve an ulterior purpose forfeits its claim to credibility and stands stripped of all evidentiary sanctity.

The administration of criminal justice cannot be permitted to become hostage to witnesses who, having once spoken

the truth with certainty, deliberately retreat from it in pursuit of a contrary design. Truth may, at times, be obscured by hesitation, coloured by loyalty, or clouded by expediency; yet it remains the enduring duty of the Court to rescue it from such shadows and to restore it to its rightful place at the centre of the judicial process.

8.The submission advanced by the learned counsel, if accepted, would lead to consequences wholly inconsistent with the fair administration of justice. It appears difficult to conceive that the law would compel the party calling a witness to remain helpless in a situation where the witness, while ostensibly supporting that party during examination-in-chief, withholds his actual position until cross-examination and only then discloses facts destructive of the very case he was called to prove. Such an approach would place a premium upon calculated evasiveness and would enable a witness to play a dual role in judicial proceedings. On the one hand, by supporting the case during examination-in-chief, he would shield himself from the possibility of openly resiling from his previous stance; yet, on the other hand, by quietly reserving a contradictory version for cross-examination, he could inflict substantial damage upon the case of the party who produced him, all while depriving that party of any meaningful opportunity to confront the deviation at the stage when it first emerges. The law of evidence does not

countenance such a stratagem. Judicial proceedings are intended to facilitate the discovery of truth and not to provide a platform for forensic ambushes. This principle finds resonance across common-law jurisdictions. Rule 607 of the Federal Rules of Evidence in the United States rests upon the recognition that the search for truth is not served by artificial restrictions preventing the effective testing of credibility merely because a witness was called by a particular party. A witness is expected to speak the truth fully and candidly, not to reveal it in fragments according to tactical convenience. Where a witness, after lending support to a party in examination-in-chief, subsequently departs from the most material aspects of that testimony in cross-examination, thereby undermining the very foundation of the case, the Court cannot remain a passive spectator. To hold otherwise would render the party calling the witness hostage to an unexpected and concealed volte- face and would permit the truth-finding function of the Court to be frustrated by artifice. It is precisely to prevent such injustice that the law vests the Court with the discretion to permit cross-examination by the party calling the witness when his conduct or testimony demonstrates an attitude averse to that party's case. The power is not intended as a weapon of convenience; rather, it is a safeguard against deception, surprise, and unfair prejudice.

As recognized in Bhagwan Singh (supra), the purpose of

the provision is not to repair deficiencies in a party's case but to provide the Court with an effective means of testing testimony whose reliability has been materially brought into question. A witness cannot be permitted to take shelter behind a technical distinction and use cross-examination as a vehicle for springing a surprise upon the party who called him in good faith and with legitimate confidence in the truthfulness of his testimony. Viewed from this perspective, the declaration of hostility in the present case was not merely permissible; it was necessary to preserve the fairness and integrity of the trial process. The conclusion is consistent with the broader philosophy of modern evidentiary law, which regards the search for truth as the central function of a judicial proceeding. Article 150 of the Qanun-e-Shahadat Order, 1984, is one of the instruments through which that objective is secured. The law cannot allow its procedures to be manipulated in a manner that rewards concealment and penalizes trust. Nor can it permit a witness, by the timing of his departure from a previous position, to determine the availability of a jurisdiction which the legislature has deliberately entrusted to the judicial discretion of the Court. To hold otherwise would be to elevate form over substance and procedural sequence over truth itself.

The declaration of hostility in the present case, therefore, represented not merely a lawful exercise of

discretion but a necessary step in preserving the integrity of the truth-finding process upon which the administration of justice. Consequently, the impugned order reflects a proper exercise of judicial discretion. It does not suffer from any illegality, material irregularity, or jurisdictional defect warranting interference by this Court. The petition is, therefore, without merit.

9.There is yet another aspect of the matter which deserves notice. The law does not confer the jurisdiction embodied in Article 150 merely for the protection of litigants. Its broader purpose is to preserve the purity of judicial proceedings and to ensure that testimony tendered before a Court remains faithful to the truth. A witness who enters the witness-box does so under oath and assumes a solemn legal obligation to state the truth fully and faithfully. The administration of justice necessarily proceeds upon the assumption that this obligation will be honoured. If a witness were permitted to support one version at one stage of the proceedings and thereafter consciously depart from it on a material aspect without any apprehension of legal consequence, the result would be to undermine public confidence in the judicial process itself.

The Court cannot overlook the practical reality that, in some cases, witnesses appear to proceed upon the assumption that a material departure from a previous version, even if deliberate, carries no consequence beyond

the possibility of being treated as hostile. Such an assumption finds no support in law. The declaration of hostility is not a substitute for accountability. It is merely an evidentiary mechanism designed to permit further testing of credibility. Where circumstances disclose that a witness has knowingly departed from the truth, willfully suppressed material facts, or consciously made statements inconsistent with what he knows to be true, the matter may travel beyond the confines of Article 150 and enter the domain of offences relating to false evidence. Sections 191, 192, and 193 of the Pakistan Penal Code were enacted precisely to safeguard the administration of justice from such conduct. Those provisions reflect a legislative determination that the giving of false evidence in judicial proceedings is not a private wrong against a litigant but a public wrong against the justice system itself. The object of the law is not merely punitive. It is preventative. It seeks to ensure that witnesses appreciate that the witness-box is not a forum for experimentation, convenience, compromise, or tactical adjustment, but a place where the law demands complete fidelity to the truth.

10.Comparable concerns have been expressed throughout the common-law world. In Chandra Shashi v.

Anil Kumar Verma (1995) 1 SCC 421, the Supreme Court of India observed that the stream of justice must remain pure and that those who pollute it by falsehood strike at the

very foundation of the judicial process. These observations resonate with equal force in the context of our legal system.

This Court would therefore observe that where a trial Court forms the view, on a tentative assessment of the material before it, that a witness has consciously and deliberately departed from the truth on a matter of substance, the Court should not regard the declaration of hostility as necessarily exhausting the available judicial response. Subject always to the safeguards provided by law and the particular facts of the case, consideration may also be given to the provisions relating to false evidence and offences affecting the administration of justice. The consistent and principled application of those provisions serves an important public purpose. It discourages deliberate falsehood, reinforces respect for the oath administered by the Court, and ensures that witnesses do not proceed upon the mistaken belief that calculated departures from the truth are devoid of legal consequence.

Announced

JUDGE

SB. Mr. Justice Mr. Justice Sahibzada Asadullah, HJ. Tariq Jan.