2024 C L C 57
[Lahore]
Before Muhammad Sajid Mehmood Sethi, J
ATTA MUHAMMAD----Petitioner
Versus
ADDITIONAL DISTRICT JUDGE and others----Respondents
Writ Petition No.25275 of 2022, heard on 11th May, 2023.
(a) Qanun-e-Shahadat (10 of 1984)---
----Art. 132---Cross-examination of a witness, right of---Scope---Adverse party---Scope---Article 132(2) of the Qanun-e-Shahadat, 1984 describes that the examination of a witness by the adverse party shall be called his cross-examination---Expression "adverse party" is defined as "a party to an action whose interests are opposed to or opposite the interest of another party to the action"---In general, an adverse party is an opposing party in a lawsuit.
Black's Law Dictionary, Sixth Edition at page 53 ref.
(b) Qanun-e-Shahadat (10 of 1984)---
----Arts. 132 & 150---Cross-examination of a witness, right of---Conflict of interest---Adverse party---Scope---Powers of the Court---Scope---Question "whether a defendant has right to cross-examine the co-defendant?" If so, in what circumstances---In the suit filed by plaintiff, the petitioner was one of the defendants and so was a lady, however, said lady endorsed the claim of plaintiff and in her evidence as one of the defence witnesses supported his (plaintiff's) version, unlike other defendants who supported the stance of petitioner---Petitioner's/defendant's request to cross-examine defendant-in-question was turned down by the Trial Court, which order was maintained by the Appellate Court---Validity---There is no specific provision in the Qanun-e-Shahadat Order, 1984, providing opportunity to a defendant to cross-examine a co-defendant; however having regard to the object and scope of cross-examination, it is settled principle of law that when a statement is made against the interest of a party to the proceedings, before that evidence could be acted upon, the party should have an ample opportunity to cross-examine the witness, who had given the evidence against him---It is only after such an opportunity is given and the witness is cross-examined that the evidence becomes admissible---Evidence becomes admissible after only it passes through the process of cross-examination by the adverse party regardless of the fact that the adverse party is a plaintiff or co-defendant, however, the condition precedent is the conflict of interest---There is another eventuality where a witness can be declared hostile when he resiles from earlier statement or material part thereof which may also be in the form of joint pleadings or examination-in-chief---Permission to cross-examine the witness would also be granted where the statement is contrary to the evidence which the witness was expected to give---Right to allow a party to cross-examine a witness of his own is discretionary with the Court and this discretion is to be exercised judiciously---Article 150 of the Qanun-e-Shahadat Order, 1984, confers on the Court a wide discretion in allowing a party calling a witness to put such questions to him as might be put in cross-examination by the adverse party, where the evidence given by the witness is unfavourable to the party calling him, or is contrary to the evidence which the witness was expected to give---In such a case, the Judge should permit such statements to be tested by cross-examination if the evidence is to be relied upon---Undeniably, a party is bound by the evidence it produces i.e. party producing a witness is bound by whatever statement the witness makes, however when an adverse statement is made by a witness the party producing the witness may get the witness declared hostile and seek permission from the Court to cross-examine him for getting rid of his adverse testimony---However, there is one exception that such permission should not be allowed by the Court if it reaches to the conclusion that the object of such cross-examination is to cover up the lacuna in the evidence---In the present case while submitting written statement, recording examination-in-chief as defence witness and even during cross-examination conducted by plaintiff, and the stance of defendant in question remained adverse to the interest of the other defendants and defence witness---From the facts of the (present) case, it cannot be inferred that the said witness came from petitioner's side because as per record, the counsel of petitioner had concluded his (petitioner's) oral and documentary evidence---However, after more than a month of said conclusion, statement of defendant-in-question as a defence witness was recorded ;and even in presence of written statement of defendant-in-question, there was no hope that said witness would depose in favour of petitioner---In these circumstances, it cannot be presumed that declaring said witness hostile and allowing to be cross-examined by a co-defendant would be an attempt to fill the lacuna---High Court set-aside impugned decisions passed by the Courts below declaring the same having been passed without lawful authority and Trial Court was directed to allow the petitioner to cross-examine defendant-in-question---Constitutional petition was allowed, in circumstances.
Muhammad Imran Khan and 4 others v. Haji Muhammad Akhtar and others PLD 2021 Sindh 510; Gulzar Mehmood Khan v. Abdul Waheed 2016 CLC 848 and Inayat Ullah v. Riaz Ahmad 1998 CLC 1148 ref.
Zafar Abbas Khan for Petitioner.
Asif Ali Kahloon for Respondent No.7.
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