Ishaq Vs The State etc

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v rN,rHE PE$IIAY*A&HIGH CqUm.

PESHAIVAR.

Uudicial Depart"mpntl

er8. No.311-P/2023 Ishaq s/o Mohabbat Khan, r/o Yakh Dhand Tumanzai, District, Mohmand.

Petitioner (s)

VERSUS

The State etc

Respondent (s)

For Petitioner (s) :- Barrister Rokhan Nafees Shafi and Mr. Muhammad Nisar Khan.

Advocate.

For State Mr. Muhammad Inam Khan Yousafzai.AAG

Mr. Majid Ali. Advocate for respondents No.2 and 3.

Syed Dawran Shah and Imdad Ullah.

Advocates, Amicus Curiae.

Date of hearing: 29.04.2024.

Date of announcement:

ORDER

ISHTIAO IBRAHIM. CJ.- Through this common Order, I propose to decide the instant Criminal Revision petition, filed by Ishaq and a connected Cr,R. No.13-P of 29, filed by the State through Advocate General Khyber Pakhtunkhwa, Peshawar, the petitioners respectively, as both are arising out of the same order dated 28.11.2023 ("Impugned order"), passed by learned Additional Sessions Judge-I, Mohmand ("Trial Court"), whereby a question "What was the reason in respect of delay in reporting the matter? Put to Ishaq

Khan complainant (PW.2) in his examination-in-chief by the Public Prosecutor, during trial in case FIR No.l9 dated 21.03.2023, registered under Sections 302,324 and 34 PPC, at Police Station Pindyalay Mohmand, has been held as a "leading question" hence has been ordered expunged by the learned trial court.

2.Facts in brief forming the background of the instant revision petitions are that case vide FIR No.l9 dated 21.03.2023, under sections 302,324 and 34 PPC, Police Station Pindyalay Mohmand was registered against the accused/respondents on the report of petitioner/complainant Ishaq.

3.After corrmencement of trial, on 15.1I .2023, complainant Ishaq Khan appeared in the witness box as PW.2. During the course of his examination-in-chief, the learned Public Prosecutor put him a question i.e. 6'What was the reason in respect of delay in reporting the matter? which was objected by learned defence counsel.

4.The learned trial court after hearing learned counsel for the parties answered the objection of learned defence counsel vide order dated 28.11.2023 in the following way:-

"As per Articles f36 & 137 of the Qanun-e- Shahadat Order, 1984, learned State counsel/private counsel for complainant cannot put leading question to the said PW.2.

v They are not permitted and hence the question is expunged.r,

5.Feeling aggrieved, complainant and the State/petitioners, have filed the instant criminal revision petitions seeking setting-aside of the impugned order and permission of the court to allow the prosecution to put the disputed question to complainant (PW.2).

6 On 25.03.2024 when the cases were taken for hearing, the court found itself confronted with the following questions:

O lVhat are the leading questions within the meaning of Article 136 of the Order,

(ir)lVhen leading questions must not be asked? as contemplated in Arlicle 137 of the Order,1984 and

(iu)Whether question put to the complainant (PW,2) is a leading question or not?

Learned counsel for the parties were directed to assist the court on the aforesaid legal points, whereas, Syed Dawran Shan and Imdad Ullah, Advocates, were appointed as Amicus Curiae

7.Today, I have heard the arguments of learned counsel for the parties and Amicus Curiae on the points and perused the law on the subject with their valuable assistance. The research work done by the Amicus Curiae also perused.

v 8. Anicle 136 QSO defines leading questions i.e. any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question. For ready reference Articles 136 is reproduced below:-

Art. 136. Leading questions:- Any question suggesting the answer which the person putting it wishes or expects to receive is called as leading question".

Perusal of Article 136 lays down a criterion, a touchstone, by which the trial judge is required and expected to decide the admissibility of every question, when objected to, in view of the peculiar facts and circumstances of the case and the witness. Anicle 137 QSO, prohibits that leading question must not be asked, if objected by the adverse party in the examination-in- chief and re-examination of a witness, otccert *ith the permission of the court. Article 137 QSO reads as under:

Art. 137. When leading questions must not be asked:- (1) Leading questions must not, ifobjected to by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the

permission of the court.

(2)The Court shall permit leadine auestion as to matters which are introductorv or undisouled, or which have, in its ooinion, been alreadv sufficientlv oroved.

Under sub-Article (2) of Article 137 eSO, the court is empowered to grant permission to ask leading question in the matter which are, ,,introductory or undisputed or which in the opinion of the courl, has been already sufficienl proved". The powers under Article 137(2) QSO, are subjective in nature that the judge presiding over the trial is supposed to exercise them in the peculiar circumstances of the case, and with regard to the social/academic standing of the witness. Needless to point out that such discretion is judicial, and is controlled by objective principles of equity and fairness.

9 The definition of leading question has been explored in various notable commentaries on the Law of Evidence and also in some case precedents from foreign jurisdiction, relevant excerpts of which are referred herein below. The definition of "Leading question" most frequently used all over is that of Stephens in his Dieest of Law of Evidence. 12th Edition published in 1936, wherein he states that:-

"A leading question is one which either:-

(a)suggests the answer desired or

(b)assumes the existence of disputed facts as to which the witness is to testiff".

Another passage on the definition of a leading question is aptly put by Edward Wilfrid Fordham in his book "Notable Cross- 1't edition nublished in 1951" in the following way:-

"What is a leading question? What were you \i doing at l0 pm yesterday? Has one not heard some such reply, as .Ah, That,s a leading question. Of course it is not a leading question, nor is it an example of cross_ examination. On the other hand, were you in Trafalgar Square at l0 p.m. yesterdaf Is a leading question and one that in legal proceedings may be asked in cross- examination."

Another definition widely used is given by Jean Duh & J.DiII in boo k, *Some of Enelish Law 108-09 (Reeinald Hall ed and Trans. I't Enelish ed.1959), as under:-

"A witness is first questioned by the party calling him. This is known as examination- in-chief. Counsel conducting it may not, on any point in dispute, ask leading questions that is to say, questions where the witness is lured into a position in which he can in the end only answer yes or no. Thus it would not be correct to frame a question: You did go to Edinburg on the 25fi of last month, did you not? The proper way of putting it is "where did you go on the 25n of last month?

The object of the rule is, first, to prevent examining counsel from suggesting in any way the answer he wants, and also to compel

an inaffentive or lazy witness to give some

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thought to the question asked".

Similarly, in case titled, ttVar Josenh vs of Kerala". (AIR 1993 SC 1892). "Leading question,' has been defined as "a question which indicates to the wifiress the fact which the prosecutor expects or desires to have confirmed by the answer". S.L. Phipson in his book, t(Manual of the Law of Evidence- 3'd Edition published in 1921, defines leading question as "questions which suggests the desired answer, or which put the disputed matters to the witness in a form permitting of the simple reply of 'yes' or 'no'." Judee Fowler in case titled. " vs Parker. 40 NH 63 (1!!gl), described leading question as "a question which puts into the mouth of the witness words which he can echo back". Another interesting approach is the one taken by Lord Ellen Borough. in case titled, "Nicholas vs Dowdins" (18151 I stark 81. wherein he has observed that

"A question would be objectionable as leading when it suggest the answer, not when it merely directs the attention of the witness to the subject, respecting which he is questioned.

Suggesting the answer and inviting the attention of the witness to the topic/subject he should give evidence ofr, are clearly two dffirent things. For example, what was the

v motive? It is inviting the qttention of the witness to the subject/topic and is permissible for the simplest of reasons that it is in no manner suggesting the answer. On the other hand, was the motive previous blood feud enmity? This question is clearly suggesting the answer and hence would not be permissible.

Christonher Allen. in his book (6Practical Guide to Evidence. 4th Edition published in 2008, defines leading question as below:-

"A leading question is one that suggests to the witness the answer that is wanted...it is, of course, necessary to a certain extent to lead the mind of the witness to the subject of the inquiry, but this is permissible provided that answer is left open to the witness. It is not always easy in practice to decide how far to go."

It is evident that there is a difference in suggesting the answer and directing the witness's attention to the subject of inquiry. From practice point of view, there are different ways of understanding whether a question is leading or not. These are general in nature and do not apply in strict sense, as facts of every case are different from other. A question that is deemed leading in one case may be deemed non-leading in another. The general

understanding is that a question that starts with words 'what', 'who', 'where' are usually not leading questions.

Similarly, questions that can be answered with a mere 'yes' or 'no' are leading question. Open ended questions are non-leading usually whereas close ended questions are leading. These general understanding do not apply to every case but are certainly helpful in determining whether a question is leading or not.

10.At this juncture I would refer to certain exceptions from a book namely, "Law of evidence written hv Chief Justice Rtil M.Monir 1lh edition published in 2010 where leading questions in certain circumstances are rela<ed by the Court,:-

"Leadins questions may be asked as to introductory or undisnuted matters or sufficientlv proved: In England, the discretion of allowing or disallowing a leading question is exercised in favour of allowing it when the question relates to an introductory or undisputed matter. In India, such question may be asked by a party as a matter of right and the court has no discretion to disallow the same. When a witness is asked about matters preliminary to the main topic of controversy maffer essentials to be brought out and yet not themselves and controversy such as the witness name, age, residence, relationship to the parties and the like there is usually no danger of improper suggestion and therefore the rule disallowing question is relaxed in favour of question relates to such matters. To abridge the proceedings, and bring the witness as soon as possible on the material points on which he is to speak, counsel may lead him on to that length, and

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may recapitulate to him the acknowledge facts of w the case which has been already established.

Leadine questions as to the identitv of nerson or thine mav be allowed bv the court:

For the purpose of identifying persons or things the attention of the witness may be directly pointed to him. Thus, the witness may be asked if the prisoner in the dock is the person he has referred to. The proper question in such cases should however be: Do you see the person referred to in Court? As identification prompted by a leading question is often worthless.

Leadine question mav be allowed to be asked of a witness to contradict another witness as to expression used bv the latter: Where one witness is called to contradict another as to expression used by the latter, the former may be asked not merely what was said but whether the particular expression were used since otherwise a contradiction might never be arrived at. Whether however the conversation is not proved merely for the purpose of contradiction, the leading question is improper. When a witness is called to contradict another respecting the contents of a lost letter, and cannot, off hand recollect all its contents the particular passage may be suggested to him, at least after his unaided memory has been exhausted.

Leadins question mav be allowed to assist the memorv of the witness:-Where the witness is unable without extraneous aid to revive is memory on the desired point i.e. whether he understands what he is desired to speak about, cannot recollect what he knows, his recollection, being exhausted, may be aided by a question suggesting the answer. Thus where a witness stated that he could not recollected the names of the members of a firm so as to repeat them without suggestion, but thought that he might possibly recognize them if suggested

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v this was permitted to be done. Similarly, to prove a slander imputing that: A was a bankrupt whose name was in the bankruptcy list and would appear in the next Gazette, a witness who had only proved the first two statements was allowed to be asked: Was anyhing said about the Gazette where from the nature of the case, the mind of the witness cannot be directed to the subject of inquiry without a particular specification of it, as, where he is called to contradict another respecting the contents ofa lost letter and cannot off-hand, recollect all its contents, the particular passage may be suggested to him at least after his unaided memory has been exhausted.

The Rule forbiddins leadins question in certain circumstances be relaxed where the witness is wantinq in understandine i.e. where the witness is a child. invalid or perhaps illiterate:- Where the witness is a child or an illiterate or an adult, does not appreciate the tenor ofthe desired details, and is, therefore, unable to say anything about it, question calling attention specifically to the details may be allow-able when other means have failed. It is, however, submitted that in India, where the majority of witnesses are illiterate the rule forbidding leading question will hardly be relaxed on the mere ground that the witness is illiterate. Where the witness is too ill or feeble or speech to be able to articulate sentences, the sentence may be framed for him suggestively, leaving him as little as possible to articulate in yet avoiding the danger or misunderstood signal of assent or dissent.

Leading question mav be put to a witness where witness annears to be hostile to the partv calline him or interested for other nartv or unwilline to sive evidence:- The court may, in its discretion permit the party calling a witness to put any question to him which might be put in cross-

v examination by the adverse party and since a party is entitled to put leading question in the cross- examination of a witness. It follows that a witness may, in certain cases, be asked leading questions by the party calling him. Leading questions are generally allowed to be put to a witness who, by his conduct in the witness box obviously appears to be hostile to the party calling him, or interested for the other party, or un-willing to give evidence, or whose special circumstances render him rather the witness of the court than of the party. A party, though called by his opponent, cannot as of right be treated as hostile, so as to entitle the party calling him to put leading question to him, as Article 150 QSO manifests."

The exceptions referred above speak about wide discretion in the court to decide whether a question is leading or otherwise.

11.I would also like to refer to the view point of the worthy Lahore High Court, Lahore, on the subject under discussion in a recent judgment dated 18.04.2024, rendered in Cr.A. No.10549 of 2021. titled. '(Rao Humavun Waoas vs the State etc". In case (supra), complainant, namely, Mushtaq Ahmad PW-2 in his examination in chief narrated the following story;

"Stated that the occurrence took place at Shah Noor when the sun was about to set. My son was present in his shop. The polling was on as it was election day. My son received injury and he fell down. The persons scattered from the place of occurrence. The dispute was about the maid. The injured was shifted to hospital and he succumbed to the injuries. He received number of fire arms shots. The postmortem examination was

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v conducted upon the deceased and we received the dead body of deceased and buried him.,'

The worthy Lahore High Court, Lahore, in the judgment (supra), held that such statement clearly shows that neither the complainant has mentioned the date and time of occurrence nor nominated any accused. Name of deceased was also not spoken, nor was any role assigned to any one for committing murder. The deviancy from requirement of stating particulars of charge against the appellant was also not attempted to be justified. Such edition of statement in no case helps the prosecution to substantiate the charges against the appellant. In response of observations of the worthy High Court, the learned Additional Prosecutor General stated that complainant was in advance age as being of 95 years, could not recollect the facts after such a long time, therefore, not mentioning the name of accused and other particulars is not fatal to the prosecution story. While dealing with the above situation, the august Lahore High Court, Lahore in parasrsphs No.8 to 13 observed the following:- "8. It is observed that examinotion in chief of a witness is to be conducted by the Public Prosecutor who ,s required to follow the pattern suggested as per international best practices so as to facilitate and assist the witness to recollect the facts. The ITth edition of a book titled "ADI/OCACY" edited by Robert McPeake

v printed by Oxford lJniversity Press explains that "examination in chief is the process of eliciting evidence fro* your own witness and is the first opportunity when the court has to asses^r the witness. A strong impression made at that stage will give the witness credibility and may withstand any attack in cross examination". The aims of conducting examination in chief is usually three- lold;

(a)to establish your case or port ofit through the evidence elicitedfrom the witness;

(b)to present the evidence so that it is clear, memorable and persuasive ;

(c)to insulate the evidence, insofar as possible, .from anticipated attack in cross examination

To achieve such aim next step is the preparation which involves

(i)selecting the order of witnesses;

(ii)selecting the order of evidence to be elicited from each w itness.

It is preferable to start and finish your case with a witness who makes a strong impression. Avoid calling your "/irst witness whose evidence is particularly vulnerable to cross examination and select which part of his evidence is to be elicitedfirst.

9.Though prosecutor is not authorized to ask the leading question in examination in chief which is explained in Arttcle 136 of the Qanun-e-Shahadat Order, 1984 as "any question suggesting the answer which the person putting in wishes or expects to receive is called a

V leading question",. however, it is subject to some conditionalities as mentioned in Article-t 37 as under;

(l)Leading questions must not, if objected to by the adverse party, be aslred in an examination-in-chief or in o reexamination, except with the permission of the Court.

(2)The Court shall permit leading questions as to matters which are introductory or undisputed, or which have in its opinion, been already stfficiently proved.

First condition is objection of opposite party, ,f ,o objection is raised, leading questions can well be asked, whereas on the objection of opposite party, still there is a space to ask leading questions if the Court permits. Court has been guided through the same provision to grant permission if the question relates to matters which are introductory or undisputed or which in the opinion of Court have already been sfficiently proved.

10.Usually to avoid leading questions, prosecutors while conducting examination in chief can use technique of five Ws, which means formulating of interrogatories with "wlten, where, what, who, why" and for seeking wide expression can ask the witness 'to describe/explain' the fact he stated. The words may not be put into the mouth of witness rather question must be framed in a sequence as to extract the story of witness in his own words. Prosecutor is not bound to conduct the

examinatton in chief of witness in a sequence of facts as mentioned in statements of witnesses recorded under section 16I Cr.PC rather it should be rearranged to create an impact by abandoning the unnecessdry details.

KEITH EI/ANS in his book "ADVOCACY IN CO(JRT,, (A Beginner's guide) summarized the task asfollows;

It is done by bearing in the mind the 'one line of transcript' rule, breaking the thing down into the shortest questions eliciting the shortest answers, and by analyzing out as you go along what building bricks you in fact require in order to erect the structure of evidence that you want from this witness. Broken down into the smallest pieces, every story, just about, can be drawn out of a witness without leading questions being used. But you often do have to break the narrative down veryfinely.

IL Preparation of witne.rses ,.r an essential task for the prosecution and it usually depends upon the status of witness as ordinary or expert, and with further segregation as child, vulnerable, infirm, incapacitated like deaf or dumb or old aged. Every sort is to be attend accordingly and prosecutor, before presenting the witness in the court, must have a meeting in order to apprise him about the Court science, like appearance style, court decorum, manners and attitude in response to questions asked by the prosecutor, defence counsel and the Court. There are many techniques to follow for conducting examination in chief of a witness. The main two techniques were discussed by this Court in a case reported as " MUHAMMAD RAI/ZAN Versus The STATE and others" (2023 P Cr. L J 1 1 56) as under;

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"During examination-in-chief, two out of many techniques are most popular to be allowed to follow by the prosecution i.e. (i) signposting, and (ii) piggbacking. Signposting in fact is an indicator to alert the witness to a particular part of his testimony e.g., telling the witness that now some questions would be asked about his status/work or questions about his relation with other witnesses and so on; this bit-by- bit examination helps the witness to recollect the facts clearly and it rb permissible qs per international best practices. Piggbacking is ct .form of question arranged with the part of answer given by the witness while using it as preJix to next question, e.9., tf a witness replied that accused made a fire shot which hit the deceased; then by using technique of piggtbacking, next question can be framed lilre; "when the tire hit the deceased, how did he react or what happened to him". This technique also helps to produce a conjunction in or symmetry to evidence. It is the domain of the court to control question which a party wants to ask as per Article 143 of QSO, 1984; therefore, court should remain vigilant while attending such questions and decide its relevancy or admissibility then and there; if a question is aslred without reasonable ground, then court can take proper action as required under Articles 144, 145 and 146 of QSO, 1984. 12, Apart .fro* techntque of signposting and piggybacking for conducting examination in chief of a witness, there are in place certqin other suilable and practiced rules in every nook and corner of the world in

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the Courts. In terms of 'Form of questions', guidelines v are as under;

(i)Do not lead (ii) Avoid wide question and ask focused/specific/targeted questions (iii) Avoid long question qnd ask short, simple questions (iv) Avoid compound questions and ask one question at a time (v) one point at a time (vi) Hne a dialogue and ensure the questions follow on (vii) establish facts not conclusions (viii) Avoid commen4 build to a point.

For sequence or structure of questions, following rules are followed:

(i)Help the witness to tell the story (ii) paint a picture (iii)Help the Court to follow (iv) use the exhibits and photos (v) use of plans (vi) avoid irrelevancies (vii) listen to the onswers (viii) avoid quick fire questions (ix) avoid interrupting (x) use piggbacking as cited above.

To have a control on the witness, techniques are as follows;

(il Ask precise question (ii) lotow your material (iii) demonstrate clear direction (iv) know where you are going (v) plan transition or alternate questions."

13.In the present case, prosecution has not attempted to elicit the necessary facts ,fro* the mouth of complainant by using any of above techniques, therefore, prosecution cose ,'s bereft of material necessary to substantiate the charge ".

L2. Adverting to the facts of the present case, the question put to complainant Ishaq (PW.2), by the Public Prosecutor in his examination-in-chief is "What

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was the reason in respect of delay in reporting the v' matter? which was objected to by learned defence counsel on the ground that the same is a leading question and finally expunged by the leamed trial court through the impugned order. It may be noted that the impugned order omits to supply reasons for its conclusion as it simply says that question put to leading one within the meaning of Articles 136 and 137 QSO, 1984. A leading question, as defined by law, is'any question suggesting the answer which the person putting it wishes or expects to receive'. The QSO, 1984 is an adjective law. It is a compendium of rules of procedure/practices, according to which the Court is to record evidence. It prescribes rules and methods with regard to recording of evidence of parties. It applies to all judicial and quasi judicial proceedings. All technicalities should be avoided, and calls for doing substantial justice between the parties, ought to be heeded. The rules of evidence are formulated to advance the interest of justice and adhering to a universal scheme of procedure in all cases. The object of the rules of evidence, obviously, is to find out the truth out of the jumble of controversies raised by the parties.

The rules of evidence for civil and criminal cases are, in general, identical but some provisions of the QSO are peculiar to criminal cases and other peculiar to civil cases. In civil case mere preponderance of evidence is a

sufficient basis for decision while in a criminal case, pursuance of guilt, must amount to such a moral certainty as convinces the mind of the court beyond all reasonable doubts. Though this court may not agree with the tenor and language of the question being objectionable, but still it is a matter of record, the issue with which the witness has been confronted is mentioned in the FIR. Besides, undeniably, the case and witness/complainant (PW.2) both belong to District Mohmand, the erstwhile FATA and now merged in the Khyber Pakhtunkhwa after Constitution (Twenty-fifth Amendment) Act, 2018.

Naturally, the present judicial system is new for the locals of the said merged district; therefore, witnesses appearing in the courts cannot be expected to be well conversant with subtleties and technicalities of adjective law; therefore, a witness of such merged district deserves all lawful assistance during his testimony to ensure that all truth is elicited from him in aid of justice. The yardstick which is to be applied to an expert witness i.e. a witness usually appearing in the court like police and Medical Officers during their examination, cannot be applied to a witness of the erstwhile FATA, that too, when he is a rustic villager. The learned trial court is best placed to assess the socio-cultural attributes of a witness in the stand, and accordingly, should, as far as law permits, relax his strictness vis-d-vis leading questions

etc in such like situation. The witness, as explained above, clearly cannot be equated with an expert witness appearing in the court in routine like Police witnesses or doctors etc. Despite the court potentially disagreeing with the linguistic/textual form of the controversial question, it acknowledges that there is categorical mention of delay in the First Information Report (FIR) where, complainant has categorically stated that reason for delay in reporting the matter was because of non-availability of vehicle and the area being mountainous. Perusal of examination-in- chief of the complainant would reveal that he has categorically deposed about the material facts of the incident as such the mode and manner in which the occurrence has taken place and has directly nominated the respondents-accused for commission of the offence;

however, he omitted to explain the delay in reporting the occurrence. The omission on the part of the complainant does not seem to be deliberate rather because of his ignorance about the technicalities of the law. Besides, the question asked from him, does not relate to any material part of the incident. The defence will be given full opportunity of cross-examining the witness during which course he may be confronted with all the questions the defence wish to put him. Admittedly, decisions about admissibility of the questions during examination of witness are best left to the discretion of the trial judge. It

is he who firsthand oversees the proceedings, demeanor of the witness, his social and educational standings, context of the question in dispute, ffid is therefore, best placed to decide them. No settled rule as to admissibility of questions can be provided, as in criminal cases, each case has unique and distinct set of facts.

However, trial courts axe supposed to exercise the discretion judiciously bearing in mind all precedential guidelines of superior courts, and considering the significance of substantial justice over and above procedural technicalities.

13.In view of the discussion above, this and the connected criminal revision petition are allowed.

Consequently, impugned order of the learned trial court is hereby set-aside. Complainant (PW.2) is allowed to answer the question put to him by the Public Prosecutor.

t4, Before parting with the order, I deem it necessary to mention here that observations in this order are only to the extent of the impugned order, therefore, shall have no bearing on fate of the case, which shall be decided by the learned trial court, after conclusion of trial, in light of the available evidence of the parties, in accordance with law, without being prejudice by this order.

15.The Additional Registrar (Judicial), shall sent copy of this judgment to the District & Sessions Judges of

each District, who shall further circulate its copy amongst the Judicial Officers in hislher relevant District for guidance.

Announced:

Iffi:rr.

M.ShoJ AJrldl CS

SB: