Molvi Allah Ditta @APPELLANT@Hash State Th. Sho P/S Surankote

Through the instant writ petition, the petitioner seeks setting aside of the impugned order dated 27.10.2017, passed by the learned Sessions Judge,

Poonch in the criminal trial entitled State vs .Molvi Allah Ditta and ors, whereby the learned Judge has disallowed the petitioner’s application

seeking to place on record two admitted documents to be used during cross examination of the witness and exhibited in evidence.

The said order reads as under:-

“From the perusal of the statement of PW Mohd Sadiq he has admitted during his cross-examination that he has written these two applications and

admitted his signatures on these two applications. The third application on which the case is registered against the accused persons is annexed with

the challan file. Counsel for the defenced has simply mentioned in his application only for cross-examination the PW Mohd Sadiq who is the

complainant in the case about the writing of these two applications and the defence counsel has not submitted in his application that firstly he be

permitted to annexed these two applications in the record of the challan and then he allowed to cross-examine the witness. The statement of the said

PW is deferred on the last date of hearing in view of the filing of the instant application by the counsel for the defence.

 In view of the above mentioned facts and reasons the counsel for the defence is permitted to cross-examine the PW Mojhd. Sadiq on these two

applications also on their own as he has not prayed for annexing these applications with the main challan. So the applications annexed with the instant

application shall not be treated as record of the challan file.â€​

The facts of the case, in brief, are that petitioner along with his five family members has been lodged in District Jail, Poonch for commission of

offences under Section 302 RPC. On 19.09.2017, the case came up before the Trial Court for cross-examination of complainant prosecution witness

No.1. During the course of cross-examination counsel for the petitioner introduced two documents in the form of written complaints in original that the

complainant had made to the police qua the occurrence beside the complainant upon which an FIR was lodged. It is submitted that in the wake of

admission of the documents/complaints as having been signed and presented by the witness (complainant)Â to the police, learned counsel for the

petitioner made an oral submission before the Court seeking leave to place the documents on record. However, learned Judge declined to entertain the

oral prayer and an application was moved. Thereafter, the further cross-examination of the witness was deferred and the public prosecutor was asked

to file objections to the application seeking placement of documents on file. It is further stated that on 27.10.2017, the said application came to be

disposed of by allowing cross examination of the witness qua the documents in question, but without permitting them to be placed on record as part of

the case file.

Learned counsel for the petitioner states that order impugned 27.10.2017, amounts to preventing the petitioner and five other persons from raising

their legally available defense in a serious charge and grave prejudice shall be caused to the petitioners and co-accused by disallowing the original

documents which constitute a concrete documentary evidence of the falsity case and their use during cross-examination of the witness who would

not be available to be recalled under the provisions of the criminal procedure code.Â

In support of his submissions, learned counsel for the petitioner places reliance on a decision of the Hon’ble Supreme Court rendered in

Bipin Shantital Panchal vs. State of Gujarat, 2001 AIR (SC) 1158 and decision of Delhi High Court in case titled Vidhu Sethi vs. State and anr., Crl.

Rev. P. No.446/2011 ( decided on 19th February, 2013). Â

I have considered the contentions. From the perusal of order of court below it is evident that petitioner along with other accused are facing trial in

FIR No.41/2017 u/s 302/147/148 RPC and 4/25 A. Act. During course of trial of trial counsel for petitioner/accused filed an application for cross

examination of complainant, who allegedly wrote two applications dated 1.4.2017 for lodging FIRs. As per order of court below, in one application he

named ten persons and in other application he named five persons. The said two applications were also annexed in application.  PP filed

objections stating that these application are not part of challan cannot be considered. But court below on27.10.2017 passed following order:-

“I have heard the learned counsel for the defence and the learned PP at length and perused the contents of the application in the light of the

submission made by the defence counsel to cross-examine the witness.

Learned PP has objected the application filed by the counsel for the defence on the ground that the instant application is not maintainable at this stage

as evidence of the prosecution has just started and Complainant state is going on. Moreover, these two applications are not part of the Challan.Â

As such, these are not necessary to be confronted. And it is in violation of the Evidence Act and in Criminal Procedure Code.Â

From the perusal of the statement of PW-Mohd. Sadiq, he has admitted during his cross-examination that he has written these two applications and

are admitted his signatures on these two applications. The third application, on which the case is registered against the accused persons is annexed

with the Challan File. Counsel for the defence has simply mentioned in his application only for cross-examination, the PW-Mohd. Sadiq, who is the

Complainant in the case about the writing of these two applications and the defence counsel has not submitted in his application that firstly he be

permitted to annex these two applications in the record of the Challan and then he allowed to cross-examine the witness. The statement of the said

PW is deferred on the last date of hearing in view of the filing of the instant application by the counsel for the defence.Â

In view of the above mentioned facts and reasons, the counsel for the defence is permitted to cross-examine the PW-Mohd. Sadiq on these two

applications also on their own as he has not prayed for annexing these applications annexed with the instant application shall not be treated as record

of the Challan File.Â

The application is disposed of accordingly and shall form part of the file.

Announced:-27.10.2017

                           (Zubair Ahmed Raza)

                  Pr. Sessions Judge, Poonch.â€​

From bare perusal of this order, it is evident that this order has been passed without application of mind. Court below has been swayed by

technicalities which may frustrate criminal administration of justice. Accused has right to cross examine the witness and purpose of cross

examination of witness/s in terms of section 146 of Evidence Act, is to test his veracity; to discover who he is and what is his position and shake his

credibility. Cross-examination is the right of the party against whom the witness is called, and the right is a valuable one as a means of separating

hearsay from knowledge, error from truth, opinion from fact, and inference from recollection, and as a means of ascertaining the order of the events

as narrated by the witness in his examination in chief, and the time and place when and where they occurred, and the attending circumstances, and of

testing the intelligence, memory, impartiality, truthfulness, and integrity of the witness; it is the duty of counsel for accused to introduce all of a

conversation or document, if the witness has testified these documents; to impair the credibility of the witness, e.g., by inducing him to admit that he

made statements or prepare and filed some documents at prior occasion contrary to his testimony on direct examination. The only purpose is to

impeach the witness by bringing evidence that he is telling lie. To the same effect, Section 145 of the Evidence Act also permits documents to be put

to the witnesses, though it does not provide whether such documents should be already on the court record or can be produced / shown for the first

time. However, it cannot be held that the document cannot be produced/shown for the first time during cross examination. If the witness to whom the

said document is put admits the said documents, the same poses no problem, because then the document stands admitted into evidence. That

document than certainly has to be taken on record. Further if other side raises any objection with regard to said document, then said document shall be

taken on record subject to objection, which shall be considered at final stage.

In AIR 2001 SC 1158 case titled Bipin Shantilal Panchal vs State of Gujarat And others, it is held as under:-

“It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in

evidence the court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the trial

court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes

of the case finally. If the appellate or revisional court, when the same question is re-canvassed, could take a different view on the admissibility of that

material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In

such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh.

Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of

long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better

substitutes which would help acceleration of trial proceedings.Â

When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the

admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as

an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment.

If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from

consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of

stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can

be followed.) The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence taking stage, would

not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours,

if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment

of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the

trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not

add to their misery or expenses.Â

We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any

material or any item of oral evidence.â€​

In present case, as is evident from the order impugned, complainant has admitted the contents of both applications in cross examination; so these

two applications are very much necessary to be placed on records, because it may contradict his statement given in examination-in-chief and Court

may not become helpless while passing the final judgment.Â

In view of above, this petition is allowed. Trial court is directed is take the documents mentioned in the application on record. Copy of this order be

sent to concerned court.