2026 P Cr. L J 722

 2026 P Cr. L J 722

[Peshawar]

Before S M Attique Shah, J

MEERAN SHAH---Petitioner

Versus

The STATE---Respondent

Criminal Revision No. 311-P of 2024, decided on 14th January, 2025.

Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI

of 2019)---

----S.11(c)---Qanun-e-Shahadat (10 of 1984), Art. 150---Declaration of

a witness as hostile---Powers of the Trial Court---Scope---Petitioner

was charged for having 20000-grams of ICE---Challan was submitted,

petitioner was charged and he pleaded not guilty and claimed trial---

At the trial, Seizing Officer, during the course of his examination-in-

chief, remained stitched to his version, which he had given in the

FIR while during cross-examination, he allegedly deviated from the

contents of the FIR as well as examination-in-chief---At that

particular juncture, a request was made by the prosecution through

Prosecutor to the Trial Court to declare Seizing Officer as hostile

witness and the prosecution be allowed to cross-examine him---Such

request was allowed---Validity---At the time of recording the

examination-in-chief, a prosecution witness was always at the hands

of the prosecution, however, once such examination-in-chief was

completed, then, he would go into the hands of the defence for

cross-examination---Given that, in terms of Art.150 of the Qanun-e-

Shahadat, 1984, the prosecution could request the Trial Court to

declare a witness as hostile if he resiled from his previous statement

but simultaneously, the Court before acceding to such request was to

satisfy itself with respect to availability of the elements of hostility

and un-truthfulness after applying its judicial conscious/mind to the

facts and circumstances of the case---Court believed that hostility

was a term which was relevant to the statement in examination-in-

chief and if a witness was allowed to be cross-examined by the

prosecution after the cross-examination by the defence, the whole

purpose of right of cross-examination of defence in the concept of

criminal administration of justice and law of evidence would be

defeated---In the case in hand, the Seizing Officer during the course

of cross-examination in response to certain questions had given

some answers which raised queries upon the mode and manner of

the occurrence but the same was not in manner which called for

declaring him as hostile, hence, the Trial Court had not properly appreciated the entire material available on the record in its true

perspective and also not applied its judicial mind while handing

down the impugned findings---Being so, the petitioner had

succeeded in making out a case for the interference of this Court in

its revisional jurisdiction---Petition was allowed, accordingly, and

impugned findings were set-aside.

Muhammad Boota and another v. The State and another 1984 SCMR

560; Riaz v. Mst. Raeela and others 2022 PCr.LJ 1472; Faisal Khan v.

State 2022 YLR 1341 and State of Bihar v. Lalu Prasad alias Lalu Prasad

Yadav AIR 2002 SC 2432 rel.

Yousaf Khan Mirzadher for Petitioner.

Niaz Muhammad, A.A.G for the State.

Date of hearing: 14th January, 2025.

JUDGMENT

S M ATTIQUE SHAH, J.---Petitioner, through the instant criminal

revision, has called in question the order dated 16.12.2024 of the

learned Sessions Judge, Khyber / trial court, whereby while accepting

the request of the learned APP, the PW-2 namely, Khanzeb has been

declared as hostile witness and in turn the prosecution has been

permitted to cross-examine him.

2. The gist of the arguments of the learned counsel for the petitioner

is that a prosecution witness cannot be declared as hostile witness as

per the spirit of Article 150 of the Qanun-e-Shahadat Order, 1984 when

his testimony is shattered during his cross-examination by the defence

and as such, the order, impugned herein, being based on illogical,

artificial and arbitrary reasons is liable to be set aside.

3. The main thrust of the submissions of the learned A.A.G. is that

when the said prosecution witness being the seizing officer has

himself resiled from his stance rather remained instrumental to

damage the entire prosecution case by giving concessional statement

in favour of the accused, then, in that event, the learned trial court

was left with no option but to declare him as hostile witness while

acceding to the request of the prosecution and, as such, the impugned

findings being well-reasoned and perfect are not open to any

interference.

4. Heard. Record perused.

5. Record reveals that the petitioner in an accused in case registered

against him vide FIR No.177 dated 17.04.2024 under section 11(C) of

the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 of

Police Station Jamrud, Khyber while the allegations against him are

that a recovery of 20000 grams of Ice has been effected from the motorcycle, which he was riding at the relevant time and as such after

arrest he has been booked in the ibid FIR. On completion of

investigation, the accused-petitioner was challaned to the court for

trial. The copies of the relevant documents under Section 265-C, Cr.P.C

were provided to him and charge was framed against him on

10.07.2024, to which he pleaded not guilty and claimed trial. At the

trial, the prosecution, in order to prove the charge and substantiate

the allegations levelled against the accused-petitioner, produced Tahir

Khan Muharrir (PW-1) on 31.08.2024 while examined Khanzeb SI /

Seizing Officer (PW-2) on 03.12.2024. The seizing officer during the

course of his examination-in-chief, remained stitched to his version,

which he had given in the FIR while during cross-examination, he

allegedly deviated from the contents of the FIR as well as examination-

in-chief. At that particular juncture, a request was made by the

prosecution through APP to the learned Trial Court to declare PW

Khanzeb SI as hostile witness and the prosecution be allowed to cross-

examine him. Such request has been handed down by the learned trial

court in the following manner:-

"At this stage learned APP on behalf of State Mr. Asim Khan

requested to declare the witness hostile for the reason that as

prosecution case the complainant handed over case property to

moharrir (Cross-Examination to be continued)."

On the next date of hearing i.e. 16.12.2024, arguments were heard

on such request of the learned APP and the learned Trial Court has

passed the impugned findings in the following manner:-

"2. The request to declare the PW-02 as hostile witness was made by

the learned APP after statement of the PW-02 that the case

property was handed over to Constable Ilyas by the complainant

for shifting to Police Station which, according to him, was

handed over by the complainant to Muharrir. The perusal of

Murasila disclose the fact that the Murasila was handed over to

constable Ilyas by the complainant to take it to Police Station for

registration of FIR. Since statement of PW-02 is against the

record, therefore, he does not seem to be desirous of telling the

truth to the court. Reliance is made on 1984 SCMR 560.

3. In such circumstances, the request is accepted. PW-02 is declared

hostile witness with permission to prosecution to cross-examine

him.

4. Notice be issued to PW-02 for 09/01/2025. The remaining PWs be

also summoned for the date fixed. Accused Meeran Shah be

produced on the date fixed.

6. The propose legal preposition for the determination of this court

in the instant case is that under what circumstances and at what stage, a witness can be declared hostile. Before this court proceeds, to dilate

upon the ibid preposition, it would be worthwhile to have a look at

relevant provisions of Qanun-e-Shahadat Order, 1984, which are as

under:-

Article 133. Order of Examinations. (1) 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 confined to the facts

to which the witness testified on his examination-in-chief.

(3) The re-examination shall be directed to the explanation of

matters referred to in cross-examinations and, if new matter is,

by permission of the Court, introduced in re-examination, the

adverse party may further cross-examine that matter.

Article 150. Question by party to his own witness. The Court may, in

its discretions, permit the person who calls a witness to put any

question to him which might be put in cross-examination by the

adverse party.

Article 151. Impeaching credit of witness. The credit of a witness

may be impeached in the following ways by the adverse party,

or, with the consent of the Court, by the party who calls him.

(1) by the evidence of persons who testify that they, from their

knowledge of the witness, believe him to be unworthy of credit;

(2) by proof that the witness has been bribed, or has accepted the

offer of a bribe, or has received any other corrupt inducement to

give his evidence;

(3) by proof of former statements inconsistent with any part of his

evidence which is liable to be contradicted;

7. From the above quoted provisions of law, it is crystal clear and

obvious that a statement of a witness is the combination of

examination-in-chief as well as cross-examination and read as a whole

in evidence.

8. Now coming to the legal preposition. The ibid preposition

remained under consideration before the superior courts from time to

time.

The august apex court while dilating upon the preposition has laid

down the criteria for declaring a witness as hostile in the case

reported as Muhammad Boota and another v. The State and another

(1984 SCMR 560) in the following manner: A witness who is unfavourable is not necessarily hostile, for a

hostile witness is one who from the manner in which lie 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. However, section

154, Evidence Act in no way fetters the discretion of the Court to

permit leading questions to be put by a party to his own

witnesses; the Court has unfettered discretion to allow the

prosecutor to cross-examine the prosecution witnesses.

9. On the touchstone of the ibid judgment, this court has to see the

status of a witness. The nature of hostile witness is distinct with that of

unfavourable witness. A witness can be termed to be a hostile witness

who resiles from his earlier statement, so given during investigation,

and record his court statement against the truth which indeed

damages the entire prosecution case while on the other hand, a

witness can be termed to be an unfavourable witness, whose

statement may against the interest of the prosecution but without any

intention of hostility which certainly does not damage the entire

prosecution case.

10. In criminal jurisprudence, the veracity and accuracy of a

prosecution witness during examination-in-chief can only be tested

through cross-examination, which indeed is a valuable right of an

accused so as to extract any fact which may favourable to him. A

witness can be declared as hostile witness but only and only when he

during examination-in-chief deviates from his earlier statement /

stance and not during cross-examination. If, during the course of

cross-examination, the testimony of a prosecution witness is shattered,

certainly that would not provide any right to the prosecution to

request for declaring the said witness as hostile in terms of Article 150

of the Qanun-e-Shahadat Order, 1984. The right of cross-examination

of defence is very valuable right and if the witness in cross-

examination makes a statement which creates doubt qua the

truthfulness of prosecution case, the benefit of such doubt is always

given to the accused and cannot be withheld in favour of prosecution.

At the time of recording the examination-in-chief, a prosecution

witness is always at the hands of the prosecution, however, once such

examination-in-chief is completed, then, he goes into the hands of the

defence for cross-examination. Given that, in terms of Article 150 of

the Qanun-e-Shahadat Order, 1984, the prosecution can request the

trial Court to declare a witness as hostile if he resiles from his previous

statement but simultaneously, the Court before acceding to such

request is to satisfy itself with respect to availability of the elements of hostility and untruthiness after applying its judicial conscious / mind

to the facts and circumstances of the case. This court believes that

hostility is a term which is relevant to the statement in examination-

in-chief and if a witness is allowed to be cross-examined by the

prosecution after the cross-examination by the defence, the whole

purpose of right of cross-examination of defence in the concept of

criminal administration of justice and law of evidence would be

defeated. Moreover, if at all, such like requests of the prosecution to

cross-examine its own witnesses and that too in narcotics cases like

the instant one are acceded to in frequent manner, then, this court

understands that it would certainly redundant the very purpose of

cross-examination. Even despite declaring a witness to be a hostile

witness, still his testimony cannot entirely be washed out rather that

part which corroborates the prosecution version can still be taken into

consideration. Rel. Riaz v. Mst. Raeela and others (2022 PCr.LJ

(Peshawar) 14721 and Faisal Khan v. State (2022 YLR (Peshawar) 1341).

11. The ibid provision of law also came up for hearing in the case of

State of Bihar v. Lalu Prasad alias Lalu Prasad Yadav (AIR 2002 SC

2432), wherein, the Indian Supreme Court has also elaborately

answered this issue as following:-

"5. Nonetheless a discretion has been vested with the Court whether

to grant the permission or not. Normally when the public

prosecutor request for permission to put cross questions to a

witness called by him the Court used to grant it. Here if the

public prosecutor had sought permission at the end of the chief-

examination itself the trial Court would have no good reason for

declining the permission sought for. But the public prosecutor

did not do so at that stage. That is precisely the reason why the

trial Judge declined to exercise his discretion when the

permission was sought for after the cross-examination was over.

The witness has said only the details in cross-examination

regarding the matter which he said in the chief-examination

itself. It would have been a different position if the witness stuck

to his version he was expected to say by the party who called the

witness, in the examination-in-chief by he showed propensity to

favour the adverse party only in cross-examination. In such case

the party who called him has a legitimate right to put cross

questions to the witness. But if he resiled from his expected

stand even in chief-examination the permission to put cross

questions should have been sought then."

12. In the case in hand, the PW-2 being a seizing officer during the

course of cross-examination in response to certain questions has given

some answers which are raising queries upon the mode and manner of the occurrence but the same is not in manner which calls for

declaring him as hostile, hence, the learned trial court has not

properly appreciated the entire material available on the record in its

true perspective and also not applied its judicial mind while handing

down the impugned findings. Being so, this court believes that the

petitioner has succeeded in making out a case for the interference of

this court in its revisional jurisdiction. In this view of the matter, this

court is left with no option but to allow this revision petition.

13. For the reasons discussed above, this court admits and allows

this revision petition, set asides the impugned findings and in turn

directs the learned trial court to proceed with trial of the accused and

decide the same as expeditiously as possible in the larger interest of

justice.

JK/216/P Revision allowed.