Child witness: Judges to record their questions to child witness and his or her answers while giving their opinion about competence of such witness-Examination of child witness by committal Magistrate rather perfunctory, hence, his opinion regarding. incompetence of witness not impressing-Sessions Judge though not recording questions and answers forming basis of his opinion regarding competence of witness yet witness having been subjected to a rather lengthy Cross-examination and having stood very well, contention of witness being incompetent, held, not impressing. [1979-Scmr-186] Umar Jehan Vs. The State [Sc]

Whether child witness can understand questions and answer in rational manner-Immaterial Proposition that in no case should evidence of child witness be believed - Cannot be laid down as a general rule of universal application - Each case depends upon its own particular facts and circumstances - Evidence of child witness before being acted upon should however be subjected to a close and careful scrutiny - Mere fact of evidence of only eye-witness of a crime being of a child of 10 years of age - No ground for not relying upon same especially when evidence given without hesitation, without slightest suggestion of tutoring and corroborated in respect of narration of facts or child's subsequent conduct immediately afterwards - Real tests consistence of story with itself, standing tests of Cross-examination and fitness with evidence and circumstances of case. [1982-Scmr-757] Maqsood Khan Vs. State [Sc]

Cross-examination - Right of accused:

Cross-examination of a witness is not just a formality, but is a valuable right of accused and best method to ascertain forensic truth. Where defence counsel is not available at the relevant time, Court is under obligation to cross-examine the witnesses in order to ascertain the truth. [2010-Pcrlj-1253] Muhammad Yaseen Alias Mithou Vs. State (Lahore)

Cross-examination - Suggestion in Cross-examination:

Simple suggestion in Cross-examination which is denied by the witness is no evidence at all. [2002-Pcrlj-668] Fatima Bibi Vs. Sardar Ali [Shariat Court-Ajk]

Cross-examination by accused himself, depricated:

Practice of providing an opportunity to accused to cross-examine the witnesses himself has been deprecated because the ability of accused to cross-examine the witnesses cannot be substituted with that of a counsel. [2010-Pcrlj-812] Muhammad Shahid Vs. State (Lahore)

Cross-examination of a witness - Value:

Cross-examination of a witness was the most valuable right of an accused in a case against him, same being the only vehicle through which the truth and falsity of witness could be determined. In absence of Cross-examination case of accused could seriously be prejudiced. [Pld-2001-Lahore-463] Abdul Raoof Vs. The State (Lahore)

Cross-examination, object of:

To bring truth out of the month of witness. [Pld-1969-Peshawar-220] Abdul Aziz Vs. Mst. Sikandar Jan (Peshawar)


Cross-examination:

Any fact deposed in the examination-in-chief, if not subjected to Cross-examination, shall be deemed to have been admitted by the other side. [2002-Ylr-2362] Mian Manzoor Ahmad Wattoo Vs. The State (Lahore)

Cross-examination is the greatest legal engine ever invented for the discovery of truth. [Pld-1992. Karachi-Sindh-91] Altaf Hussain Shamim Vs. The State [Karachi-Sindh]

Prosecution witness not cross-examined by accused - His evidence deemed to be accepted. [1975-Pcrlj-644] Kala Vs. The State (Lahore)

Prosecution case being that accused N did not give any blow to deceased - Suggestion in Cross-examination that accused N and other accused M both gave blows to deceased in self-defence - Questions put in Cross-examination Not at par with admission by accused-Careless question by counsel, held, cannot lay foundation for conviction-Conviction to be made on basis of prosecution evidence. [1973-Pcrlj-510] Mithoo Vs. The State (Lahore)


Cross-examination:

Whole purpose of trial/inquiry was to find the truth to impart justice. Cross-examination was strongest tool to achieve the object; it was very important that accused should have the facility of cross-examining the complainant and his witnesses in as complete manner as possible. Object of Cross-examination with the assistance of earlier statement made by the complainant or his witness was to protect accused against untruthful witnesses. [2005-Ylr-933] Muhammad Ashiq Vs. Muhammad Anwar (Lahore)

Accused has the inalienable right to impeach the character, integrity and credibility of the witness by confronting him with any material that may establish that the said witness was not a just (Adil) witness, to further prove that the prosecution had thus failed to fulfill the essential requirement that there should be two such Adil witnesses to prove a case of Qisas against him. [1992-Pcrlj-1536] Wajid Umar Alias Gogi Vs. The State

Order for allegedly kidnapped girl to be kept in Dar-ul-Aman till her statement recorded in presence of accused. Open to question. No request having been made in such regard by Police or by any other person including girl herself, no justification existed for bet being sent to Dar-ul-Aman - Girl's statement having had to be recorded as a witness and not as confession, petitioner Magistrate should not have worried to let her make her statement voluntarily in face of his direction to let her statement be recorded in presence of accused so that she may be cross examined. [1981-Pcrlj-1324] Muhammad Ramzan Vs. State (Lahore)


Defence plea:

Law required that if accused had a defence plea, same should have been put up to the witnesses in Cross-examination and then put up the same at the time of recording the statement u/s 342, CrPC [2008-Ylr-2910] Muhammad Arif Vs. State [Karachi-Sindh]

Discrepancy: Witness - Cross-examination:

Discrepancy - Accused brought to trial three and a half years after occurrence - Rustic PWs inclusive of a woman subjected to lengthy and gruelling Cross-examination lasting from 2 to 4 days each by counsel reputed for employing brow-beating tactics on witnesses - Certain contradictions between their statements at trial and those recorded earlier, held inevitable. [Pld-1977-Sc-557] Roshan Vs. The State [Sc]

Evidence - Witness:

People generals, hesitate to cone forward as witnesses in criminal cases for obvious reasons. Prosecution failing to produce nearby shop-keepers and residents of Mohalla Adverse presumption does not necessarily arise against prosecution on that account in view of conditions prevailing in contrary Related witnesses said to have witnessed occurrence, having stood test of Cross-examination and their testimony having been to corroborated by reliable circumstantial evidence. Court should not hesitate to believe such witnesses and rely upon their testimony. [1976-Pcrlj-311] Ghulam Mohayuddin Alias Muhammad Panah Vs. The State (Lahore)

Examination of witnesses:

Eight prosecution Eye-witnesses examined - Trial being only for offence of hijacking and not also for attempted murder of Air Marshal shot at by accused and all PWs given up being duly tendered for Cross-examination but offer not availed of, contention that trial vitiated for want of examination of such prosecution witnesses, held, fallacious. [Pld-1978. Karachi-Sindh-777] Nazeer Ahmad Vs. Abbas Ali Khan [Karachi-Sindh]

Examination-in chief and Cross-examination - Appreciation of evidence:

Conviction can be based on the evidence which connects the accused with the offence beyond any reasonable doubt. In reaching such conclusion the evidence i.e., the examination-in chief and Cross-examination of the witness, has to be properly appraised and its evidentiary value evaluated qua the innocence of the accused. [2002-Pcrlj-678] Amir Bakhsh Vs. The State [Fsc]

Hostile witness - Cross-examination:

Prosecution witness, in opinion of Court, turning hostile. Can be allowed, by order of Court, to be cross-examined only by Public Prosecutor-Court allowing counsel for complainant to cross-examine such witness without passing any order-Practice, held, highly irregular. [1968-Pcrlj-68] Shahadat Vs. The State (Lahore)


Initial report:

Eye-witnesses and initial report giving an exaggerated account of injuries quite inconsistent with marks found on person of deceased Basic falsities in evidence not to be ignored in relying only on one witness whose statement in Cross-examination was "major departure" from that given of whole occurrence by himself-Conviction of two of a large number of accused on part of charge set aside-Benefit given of "patent" doubt appearing "on face of evidence". [Pld-1967. Sc-16] Taleb Vs. State [Sc]


Lengthy Cross-examination:

Appreciation of evidence - Cross examination: When a witness was subjected to a lengthy Cross-examination, it was very natural that some discrepancies would crop up and in such situation minor discrepancies should be ignored. [2002-Ylr-3620] Nazar Abbas Vs. The State (Lahore)

Not challenged by accused in Cross-examination -

Assertion of prosecution that accused had supplied defamatory item of news in capacity of General Secretary of Union of Journalists - Assertion not challenged by accused in Cross-examination. Accused cannot contend that there was no proof of publication of news item by him. [Pld-1967. Sc-32] Khondkar Abu Taleb Vs. State [Sc]

Opportunity of cross-examining:

Witness and Cross-examination: No opportunity of cross-examining a witness afforded, testimony of such witness, held, inadmissible. [Pld-1980. Karachi-Sindh-213] Abbas Vs. The State [Karachi-Sindh]

Petition for leave to appear - Examination of witnesses:

Case against accused started on direct complaint. Complainant examined PWs and then accused had a right of Cross-examination but complainant again requested for recalling prosecution witness on ground that he was to be cross-examined by him in respect of a document Prosecution witness was complainant's own witness and if he wanted to cross-examine him, he should have firstly declared him hostile when he gave his evidence in Court for the first time and then sought permission to cross-examine him. Held, it was not open to complainant to request for summoning said witness afterwards in order to cross-examine him. Application of complainant for Cross-examination of said witness was filed mala fide with a view to protract proceedings-Leave to appeal refused. [1989-Scmr-271] Abdul Majeed Khan Vs. Azizuddin [Sc]

Re-calling of Court witness:

High Court's order allowing re-calling of Court witness for further Cross-examination, impugned. There being no flaw in said order, Supreme Court declined to interfere. Petition dismissed. [1985-Scmr-1913] Khair Din Vs. State [Sc]

Retrial:

Record not showing anything which suggested that case of accused was prejudiced. Mere fact that Cross-examination was. not conducted, would not mean that retrial be ordered. [1986-Pcrlj-2589] Hayatullah Vs. The State [Fsc]

Right of Cross-examination of prosecution witness:

Important and vested right of accused - Accused denied opportunity of Cross-examination of prosecution witness by illegal appointment of defence counsel for accused in his absence and without authority - Evidence of such prosecution witness, held, not admissible against accused. [Pld-1983. Sc-291] Yahya Bakhtiar Vs. The State [Sc]

Suggesting false implication:

Allegation against prosecution suggesting false implication of accused Not affirmatively put forward by accused but raised by questions in Cross-examination of prosecution witnesses-Value. [Pld-1956. Fc(Pak)-402] Dil Muhammad Mondal Vs. The Crown [Fc(Pak)]

Test of Cross-examination - Criminal Trial:

If a witness is not put to the test of Cross-examination, it would mean that the other side accepts his testimony. [1993-Pcrlj-1729] Mahmood-Ur-Rehman Vs. State (Lahore)


To weigh and assess an evidence:

Evidence: To weigh and assess an evidence, the entire statement comprising of examination-in-chief and Cross-examination, had to be taken into account. [2005-Pcrlj-138] Kashif Ikram Vs. The State [Fsc]

Witnesses for prosecution:

Some recalled more than once for examination and Cross-examination. Witnesses summoned on more than one application, by complainant, accused. [Pld-1962. Lahore-558] Syed Ali Nawaz Shah Gardezi Vs. Lt. Col. Muhammad Yusuf Khan, Commissioner, Quetta Division (Lahore)


Word "shall" used in S-162 CrPC - Scope - Previous statement, confronting of - Principle - Statement before police:

During trial, accused produced defence witness who had appeared before police during investigation and his statement was also recorded u/s 161 CrPC During Cross-examination, complainant was not allowed to confront said defence witness with his statement recorded earlier by Investigating Officer during investigation. Validity. Statement recorded u/s 161 CrPC could only be used by accused for such limited purpose and the same could not be used for any other purpose. Legislature used word "shall" for making absolute bar of using such statement for any other purpose. Article 140 of Qanun-e-Shahadat, 1984, was controlled by S-162, CrPC and prohibition contained in S-162 CrPC could not be defeated. Statement u/s 161, CrPC recorded by police could not be utilized as substantive evidence and it could only be utilized u/s 162 CrPC to contradict such witness in the manner provided by Art-140 of Qanun-e-Shahadat, 1984. When statement to be confronted was recorded u/s 161 CrPC., then rider of S-162, CrPC would apply but Art-140 of Qanun-e-Shahadat, 1984, being part of general law of evidence had its own independent legal efficacy and application upon any other previous statement of witness, which might have been made by him in some other judicial, quasi-judicial, administrative, executive proceedings or inquiries or before such of the forums or even privately made through some instrument ie, agreement or affidavit, could be confronted to that person, if relevant, in any criminal case, however subject to its proof. High Court maintained order passed by Trial Court whereby complainant was not permitted to confront defence witness with his earlier statement recorded u/s 161 CrPC. Revision dismissed. [Pld-2013. Lahore-8] Muhammad Sarwar Vs. Muhammad Afzal (Lahore)

From Muhammad Khurram (Son of Mr. Justice (r) Dr. Munir Ahmad Mughal), Advocate, High Court, Muneeb Book House, 1-Turner Road, Lahore - Phone 0332-4659394