کیا ایک مدعاعلیہ دوسرے مدعاعلیہ پر جرح کرسکتا ہے؟

 Misc. Writ
25275/22
Atta Muhammad Vs ASJ etc
2024 CLC 57

"Whether a defendant has right to cross-examine the co-defendant?

If so, in what circumstances?

The procedure of examination of witnesses is synchronized by Articles 130 to 161 of the Qanun-e-Shahadat Order, 1984. Article 130 aims to regulate procedure as to production and examination of witnesses in the Court, while Article 132 elaborates three stages that might come while recording statement of a witness. First stage is examination-in-chief by the party who has produced a witness, second stage is cross-examination by the opposite party and third stage is re-examination, optional with the party calling the witness.

The expression "adverse party" is defined in the Black's Law Dictionary, Sixth Edition at page 53, 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.

It may be observed that 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 then evidence becomes admissible It is clear from the above that 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.

Needless to say that the 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 her for getting rid of her 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.