Muhammad Hayat vs State Ss — 2026 PCrLJ 949 PESHAWAR-HIGH-COURT

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Muhammad Hayat VS State Ss. 302(b) & 109---Qanun-e-Shahadat (10 of 1984), Art. 133---Qatl-i-amd, abetment---Appreciation of evidence---Cross-examination, right of---Scope---Accused was charged for committing murder of the brother of complainant by firing---Record showed that prosecution produced three eye-witnesses before the Trial Court---Two witnesses were cross-examined whereas, the third witness, after recording of his examination-in-chief, was not cross-examined by the defence rather he was abandoned by the prosecution without any plausible reason---Held: Non-production of that witness in spite of recording of his examination-in-chief raised many questions in a prudent mind---Legally, for many factors, that witness, who had already entered the witness box and recorded his examination-in-chief asserting therein certain facts posing himself to be the eye-witness of the occurrence, could not be treated as a mere formal witness or a matter of prosecution's choice to abandon him without bringing on record any valid justification particularly when he was admittedly alive---In this case, the other two eye-witnesses had already been examined and cross-examined but in the attending circumstances of the case, the cross-examination of third witness played a decisive role---Once a witness stepped into the witness-box and also recorded examination-in-chief then the prosecution could not subsequently abandon that witness merely on the ground that other witnesses had already been examined---Once a witness entered the dock and gave a statement on material facts then in such an eventuality, the Court had a duty to regulate the proceedings and ensure that such a witness was cross-examined in accordance with law by the defence---If there was no compelling circumstances, the examination-in-chief and cross-examination of the same witness was required to be recorded on the same date---Court could not act as a passive bystander but it must actively steer and control the trial process to maintain fairness and balance between the parties for administering justice---Responsibility of the Trial Court was to have ensured uniformity and consistency in the examination process of the witnesses and to prevent the prosecution or any party including the defence from manipulating the legal proceedings only for the sake of their convenience---If a prosecution witness was not cross-examined due to the prosecution's unilateral decision to abandon him and the Court failed to act as per law, it amounted to a miscarriage of justice---In this case in view of the factual aspect that "cross-examination reserved", the prosecution could not take the plea that the defence had waived off its right to cross-examine the witness---Exercise of cross-examination was not just a formality but it was a vested valuable right of the accused as provided by S.133 of the Qanun-e-Shahadat, 1984---Plain reading of this provision of law would clearly indicate that the statement and testimony of the witness could not be considered as admissible in evidence unless such a witness was subjected to cross-examination by the defence---In other words, it might be stated that the cross-examination of a witness was the fundamental and statutory right of the accused and the same could not be taken away from him, save in accordance with law, which was not the position in the case in hand---Therefore, the impugned judgment on the appreciation of the available evidence without affording an opportunity to the defence for cross-examining third witness whose examination-in-chief had already been recorded, could not sustain rather remand of the case for his re-summoning/re-examination was inevitable, in the circumstances---Appeal was allowed, the impugned judgment of the Trial Court to the extent of the present appellant was set aside and consequently, the case to his extent was remanded to the Trial Court with directions to re-summon third witness for his cross-examination and thereafter decide the case in accordance with law but after hearing the parties. When a thing is required to be done in a particular manner that must be done in that manner and not otherwise.

Muhammad Hayat vs State Ss — 2026 PCrLJ 949 PESHAWAR-HIGH-COURT

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