Impeaching the credit of witness
Impeaching the credit of witness
Principle and Scope:
Articles 132, 140, 141 contains provisions for impeaching the credit of a witness by cross examination. Article 151 deals with another mode of impeaching credit of a witness, viz by giving independent evidence, in addition to the modes of discrediting the testimony of a witness by cross examination. The credit of a witness may be impeached under Article 151 by the adverse party, or with the consent of the Court, by the party who calls him, in the following manner:-
- By the evidence of persons that the witness bears a general reputation for untrustworthiness; but not evidence of particular facts from which the inference of untruthfulness might be drawn.
- By proof of misconduct connected with the proceedings e.g. that the witness has been bribed or has accepted the offer of bribe, or has received any other corrupt inducement to give evidence.
- By proof that the witness had made a previous statement on matters relevant to the issue, which is inconsistent with his present testimony.
- By evidence of general immoral character of prosecution in prosecution for rape or attempt to ravish.
Under Article 151 a party can impeach the credit of his opponent’s witness as a matter of right, but as to his own witness it can be done only with the leave of the court and good cause must be shown for such leave.
By the party who calls him:
A party who calls a witness may impeach his credit by cross examining but it can do so only after the witness has been cross examined and the court finds that he is a hostile witness. It is of course permissible with the permission of the court to cross examines ones own witness; but there is no warrant for the procedure, by which session judge permits a witness, whose evidence in chief has not been heard until that witness has been examined, to be treated at once as a hostile witness and cross examined by the side which called him.
Paragraph 1: by the testimony of other persons that witness is unworthy of credit:
Under clause 1, the evidence must be of persons who from their knowledge of the witness can testify that they believe him to be unworthy of credit. When credit of a witness is objected to, general evidence that he is not to be believed on oath is admissible but specific evidence that at some period he had committed a particular crime is not admissible.
In R vs. Longman, 1968, 2 All ER 761, EDMUND DAVIES LJ, summarized the position: “A witness may be asked whether he has knowledge of the impugned witness’s general reputation for veracity and whether (from such knowledge) he would believe the impugned witness’s sworn testimony. 2. The witness called to impeach the credibility of previous witness may also express his individual opinion (based on his personal knowledge) whether the latter is to be believed on his oath and is not confined to giving evidence merely of general reputation. 3. Whether, however, his opinion as to the impugned witness’s credibility be based simply on the latter’s general reputation for veracity or on his personal knowledge, the witness cannot be permitted to indicate during his examination in chief the particular facts, circumstances or incidents which formed the basis of his opinion, although he may be cross examined as to them. (at page 764).
Paragraph 2, Evidence of misconduct connected with the proceedings:
POLLOCK CB, in Attorney General vs. Hitchock, 1 Ex 91 observed, “it is totally irrelevant to the matter in issue that some person should have thought fit to offer a bribe to the witness to give an untrue account of the transaction; and it is of no importance whatever if that bribe was not accepted. It is no disparagement to a man that a bribe is offered to him, it may be disparagement to the person who makes the offer”.
Paragraph 3: Evidence of former inconsistent statements:
A witness may be discredited by proof of his former statement inconsistent with his present testimony. Article 140 which also refers to discrediting by former contradictory statements is applicable to statements made by him in writing or reduced to writing, with which a witness is confronted in cross examination. But Article 151 (3) being expressed in general terms it may apply to previous statements both oral and written, though it appears to refer principally to previous oral statements.
It was held by Lahore High Court “that Article 140 and 151 (3) QSO makes it evident that a witness, who enter the witness box, can be cross examined as to his previous statement, made by him in writing or reduced into writing by the other side and that witness is to be given opportunity, after seeing the inconsistent statement, to explain the same…. Article 151 (3) is to be read with Article 140 of Qanun e Shahadat Order. Although these two Articles cater for different aspects, yet the aim of both are overlapping. Article 151 (3), 1984 states that credit of witness may be impeached by proof of former statements which were inconsistent with any part of his statement in court. The objective of Article 151, QSO, is to demonstrate that the person in the witness box in not creditworthy. Article 151 (3) of QSO, however, does not provide the manner of proof of earlier inconsistent statements, while Article 140 of the QSO provides such machinery.
PLD 1996 LAH 512
Paragraph 4: Evidence of General immorality of prosecutrix in Rape cases:
In a rape case, the consent of the complainant to the act being the material matter in issue, the moral character of the women is of considerable value. Hence, evidence that the prosecutrix was of generally immoral character is admissible. Such evidence of general bad character is receivable not only under cl (1) to show that she is unworthy of credit but also, and probably with stronger reason, on the question of consent. This evidence is therefore, admissible whether she be, or be not, cross examined. As per GAROTTE J, in People v. Johnson, 1895, “it is certainly more probable that a women who has done these things voluntarily in the past would be much more likely to consent that one whose past reputation was without blemish, and whose personal conduct could not be truthfully assailed.
Explanation to the Article 151:
The Explanation says that the witness may not give reasons for his belief in examination in chief but he may in cross examination be asked as to his means of knowledge, his feelings of hostility, his reasons for believing a witness to be unworthy of credit and similar questions and the like rule as in Article 149, his answers cannot be contradicted. The impeaching witness cannot, in direct examination, give particular instances of other’s falsehood or dishonesty, since no man is supposed to come prepared to defend all the acts of his life. But, upon cross examination he may be asked as to his means of knowledge of the other witness, his feelings of hostility towards him, or whether, in spite of bade character in other respects, the impeached witness has not preserved his reputation for truth; and the answers to these questions cannot be contradicted. The impeaching witness should come from the locality of the other and not be a stranger sent expressly to learn the latter’s reputation. (Mawsom v. Heartsink, 4 Esp 103).