2022 Y L R Note 77

[Sindh]
Before Salahuddin Panhwar, J
Mst. NAGINA BEGUM---Applicant
Versus
ABDUL MAJEED ALI and 4 others---Respondents
Criminal Revision Application No. 189 of 2018, decided on 15th March,
2019.
Qanun-e-Shahadat (10 of 1984)---
----Art. 140---Criminal Procedure Code (V of 1898), S. 561-A---
Application for quashing of order---Cross-examination as to previous
statement in writing---Accused had challenged the order of the Trial
Court, whereby, while cross-examinating, counsel referred an
application to the witness filed by accused in other proceedings and
counsel attempted to confront contents but such questions were not
allowed by the Trial Court on the plea that since it was not exhibited in
the case therefore it could not be shown and contents could not be put
in cross-examination---Validity---Article 140 of the Qanun-e-Shahadat,
1984, described that a witness could well be cross-examined as to
previous statements, made by him in writing or reduced into writing,
if same was relevant---Such right had been provided because the rival
party might have competently produced such document at his turn,
therefore, right to cross-examine regarding earlier relevant statements
is not subject to production of that document, as per Part-1 of Art.140
of Qanun-e-Shahadat, 1984---Trial Court was not competent to disallow
such a question unless same would have been found 'irrelevant'---Law
was quite clear that mere production/exhibition of a document was
never a sufficient proof of its contents then admissibility and
relevancy therefore could also be examined by Trial Court at proper
time by taking objection or observation on record---Order impugned,
being in complete negation to Art. 140 of Qanun-e-Shahdat, 1984, could
not be sustained, hence the same was set-aside---Criminal revision
petition was allowed accordingly.
Muhammad Sarfraz v. State PLD 2013 SC 386 rel.
Farhad Khan for Applicant.
Muhammad Rahib Lakho for Respondents Nos. 1 and 2.
Faheem Hussain, D.P.G. for Respondents Nos. 3, 4 and 5.
ORDER
 SALAHUDDIN PANHWAR, J.---Learned counsel for the applicant
(accused) has challenged order of the trial Court, whereby, while cross-
examination. Learned counsel referred an application to the witness
filed by him in other proceedings. Further counsel attempted to
confront contents but such questions were not allowed by the trial
court on the plea that since it is not exhibited in the case therefore it
cannot be shown and contents cannot be put in cross-examination.
2. Heard learned counsel for the respective parties.
3. Learned counsel for the applicant (accused) has referred clause
(2) of Article 132 of the Qanun-e-Shahadat Order, 1984, which is that
"the examination of a witness by the adverse party shall be called his
cross-examination" and further contends that trial Court was bound to
allow the applicant in order to bring his case (defence plea) on record
as the matter was relating to Illegal Dispossession Act and it has two
effects, one is acquittal/ conviction, another is judgment on property
thus criminal and civil liability is to be adjudicated by the trial court.
4. In contra, learned counsel for the respondents (complainant)
argued that applicant will be competent to bring any record during his
statement (Section 342, Cr.P.C) hence, order of the trial court is very
legal. Whereas, learned D.P.G. agitated that Article 132, Sub-Article (2)
of Qanun-e-Shahadat Order, 1984 relates to the relevancy of document,
thus applicant failed to substantiate the same.
5. At the very outset, it is relevant to mention here that the Cr.P.C.
provides a fair opportunity to either sides i.e. prosecution/complainant
party and defence to examine witnesses and production of documents
in order to prove or disprove the charges or defence (265-F Cr.P.C.).
The Code and provisions of Qanun-e-Shahadat Order, 1984 have made
it clear that there are two categories of witnesses i.e. the prosecution
witnesses/ complainant's witnesses and the defence witnesses and
both categories are distinctly placed shall not be intermingled.
Reference, if any, may be made to the case of Chairman, NAB v.
Muhammad Usman and others (PLD 2018 SC 28) wherein it is observed
as:--
12. From the entire scheme of above provisions of Cr.P.C. and of the
provisions of the Qanun-e-Shahadat Order, 1984, it becomes
clearer than crystal that the two categories of witnesses i.e. the
prosecution witnesses and the defence witnesses are distinctly
placed pole apart and both cannot and shall not be intermingled.
6. Since, the witness of prosecution or defence legally can't be
compelled to say the favouring version or document of rival side,
therefore, if the law would have allowed things to be led by whims and
wishes of parties then it would have never been possible for other side
to test veracity/credibility of witness, under examination, by referring
document which the party deliberately avoids production. To avoid
such undue advantage, the legislature did include the Article 140 in
Qanun-e-Shahadat Order, 1984 which reads as:-
"Article 140. Cross-examination as to previous statements in writing.
A witness may be cross- examined as to previous statements
made by him in writing or reduce into writing, and relevant to
matters in question, without such writing being shown to him,
or being proved; but if is intended to contradict him by the
writing, his attention must, before the writing can be proved, be
called to those parts of it which are to be used for the purpose of
contradicting him."
From above, it is quite obvious and clear that a witness may well be
cross-examined as to previous statements, made by him, in writing or
reduced into writing, if same is relevant. Such right has been provided
because the rival party may competently produce such document at
his turn, therefore, right to cross-examine regarding earlier relevant
statements is not subject to production of that document, as per part-1
of the referred Article. The legislatures, however, have maintained a
balance between rights of two rivals in second part of the said Article.
Per plain language of the said Article if rival party demands more than
a mere referral to earlier statement/writing i.e. 'to contradict' than
specific attention of such a witness (under examination) to contents
(parts) of such document/writing has been made mandatory by using
the word 'must'. Thus, I would conclude that if rival wants to
contradict the witness, under examination, then production of earlier
statement/writing, as defined by article itself, becomes necessary
because legally one cannot be contradicted without showing his
claimed writing. I would further clarify that such documents,
qualifying within meaning of Article 140 of Qanun-e-Shahadat Order,
may well be brought on record by rival party while exercising his right
of 'cross-examination' but for purpose of 'contradicting' only and not
for 'corroboration' even if party, examining the witness declares
him/her as 'hostile'. This line of distinction needs to be kept in view
while dealing with such a situation. Reference may well be made to the
case of Muhammad Sarfraz v. State PLD 2013 SC 386 wherein such
distinction has been stamped as:--
"8. The argument that if the prosecution is allowed to confront a
witness with his previous statement recorded under section 161,
Cr.P.C. during the course of cross-examination after being
declared hostile, it would amount to using it for corroboration
rather than contradiction would be just academic when we are
quite clear in our mind that it cannot be used by the prosecution
 for the purpose of contradicting the witness we, therefore, hold
that the prosecution cannot be permitted to confront a witness
with his previous statement recorded under section 161 of the
Cr.P.C. for the purpose of contradicting him even after being
declared hostile."
Needless to clarify that such production, however, shall never
discharge the party, relying on such document, from his liability to
prove the legality and admissibility thereof as per requirement of law
because the Article itself made such things clear by use of phrase
"before the writing can be proved". I would further add that provision
of Article 140 supra, has its own objective and relevance, hence same
shall have its application on both criminal as well civil litigations.
7. Having said so, now I would revert to merits of the case. It is
pertinent to mention here that this examination was in a Direct
Complaint relating to sections 3 and 4 of the Illegal Dispossession Act,
2005. Needless to add that complaints, under Illegal Dispossession Act,
do fall within meaning of 'criminal administration of justice' and even,
per section 9 thereof, the Code of Criminal Procedure, 1898 is
applicable hence Qanun-e-Shahadat Order being controlling/guiding
examination, cross-examination and re-examination, would be
applicable to this Act too. Now, before attending merits of the case, it
would be conducive to refer the examination-in-chief available at
page-19 and cross-examination.
"Examination - in - chief to Mr. Muhammad Rahib Lakho learned
counsel for complainant
I am attorney of complainant Abdul Majeed as he has been residing
at Canada since 43/45 years along with family. On 09.09.2006
mother of complainant had died and complainant reached
Pakistan sometime prior to that. Again complainant visited
Pakistan on 28.03.2016. I produce General Power of attorney at
Exh-3/A which is same, correct and bears my signature.
Complainant has flat No.G-18, Mahboob Arcade near Gol Market,
Hamdard Dawakhana. Complainant purchased the said flat in
the year 1997. I produce photocopy of CTC of indenture of sub-
lease at Exh-3/ B (Original CTC seen and returned). Original was
misplaced for which report was lodged at P.S. I produce
photocopy of NC report No.25 at Exh-3/C (original seen and
returned). After purchasing the above said flat, the complainant
let out the same and went to Canada. Mother of complainant
used to collect rent. The mother of complainant and his brother
got the flat vacated from tenant. In the year 2016 complainant
went to visit his flat and found the lock was broken. On known
at the door, Nagina and her children came out. Anagina is sister
 in law of complainant and called the complainant inside the flat
and disclosed that she had no residence, therefore, she broke the
lock of his flat and used to reside there. The complainant replied
that she would have got his permission on which she replied
that the number of complainant was not available. The
complainant asked her that his number could be got from his
other family members. The complainant went to Police Station
Nazimabad but his FIR was not registered. Police asked the
complainant to vacate the flat through Court, therefore, he filed
the present case. I pray for justice.
Note: The learned counsel for accused raised objections that the
advocate for complainant was putting the words in the mouth of
witness. This Court observed that the learned counsel for
complainant only asked the witness about the issues on which
the witness deposed the details.
Cross-examination to Mr. Fahad Khan, learned counsel for accused
It is correct to suggest that Power of Attorney is not registered. It is
incorrect to suggest that power of attorney did not pertain to the
present case. I signed on Power of Attorney on 28.03.2016 in
Court premises. Complainant is brother in law (behnoi). It is
incorrect to suggest that prior to this case complainant moved
application to Pakistan Rangers Nazimabad.
Note: The learned counsel for accused wanted to show photocopy of
an application allegedly moved by the complainant to Pakistan
Rangers from his record to the witness and cross-examined on
its contents. Not allowed as such application has not been
exhibited in this case, therefore, it cannot be shown to the
witness and cross-examined on its contents. (Underlining is
mine for emphasis)
Further cross-examination is reserved on the request of learned
counsel of accused on the ground that Revision would be filed by
him against the above note".
8. Prima facie, the learned trial Court judge has declined the
question merely for reason that question was referring to a document,
not exhibited. The learned trial Court judge even went further by
saying that: 'it cannot be shown to witness'. I am quite surprised to
such approach of the learned trial Court judge which, prima facie, is in
complete negation to Article 140 of the Qanun-e-Shahadat Order. The
question was posed with reference to a specific document and even
contents whereof were shown (attention was brought). The learned
trial Court judge was never competent to disallow such a question
unless same would have been found 'irrelevant'. I would further add
that since the law is quite clear that mere production/exhibiting of a
document is never a sufficient proof of its contents then admissibility
and relevancy thereof can also be examined by learned trial Court at
proper time by taking objection or observation on record. The order
impugned, being in complete negation to Article 140 of Qanun-e-
Shahadat Order, 1984, cannot sustain hence the same is hereby set-
aside. Accordingly, instant Crl. Revision Application is allowed with
directions to the trial Court to permit the accused for cross-
examination. However, the trial Court would be competent to decide
such defence plea in juxtaposition at the time of passing final order.
Criminal Revision Application stands disposed of in the above
terms.
JK/N-23/Sindh Revision allowed.
;