Cross-Examination Right Begins with the First Testimony: Supreme Court

Independently written and published by Shahbaz Shah Legal Journal.

The Supreme Court of Pakistan has explained that the right to cross-examine a witness attaches when examination-in-chief begins. A party cannot first put testimony on the record and then unilaterally give up that witness to defeat the opposing party’s opportunity to test it. Judgment, paragraph 4.

The Court nevertheless upheld Qaiser Mehmood’s murder conviction and life sentence. Although it described the prosecution’s handling of one witness as a grave error, it found that the remaining eyewitness and medical evidence sustained the conviction. The complainant’s connected request for enhancement also failed. Judgment, paragraphs 5–7.

This commentary concerns Jail Petition No. 228/2022 and Criminal Petition for Leave to Appeal No. 872-L/2022. The supplied copy records a hearing on 30 September 2026 and leaves its announcement line blank. A separate pronouncement date has not been confirmed. Justice Ishtiaq Ibrahim authored the judgment for a bench with Justices Muhammad Hashim Khan Kakar and Salahuddin Panhwar. Judgment, case heading and announcement line.

The witness was given up after giving evidence in chief

The prosecution alleged that Qaiser Mehmood shot Rana Liaqat Ali outside the family residence after Maghrib prayers on 18 November 2017, following a dispute over excavation of a watercourse. The deceased’s son Ishtiaq Ahmed, PW-9, and brother Rafaqat Ali, PW-10, described returning with him from the mosque and witnessing the attack. Judgment, paragraph 2.

Musarrat Bibi, the deceased’s wife, was also produced as PW-11. After her examination-in-chief had been recorded, the prosecution gave her up. The Supreme Court strongly disapproved of allowing that step to remove the defence’s statutory opportunity to cross-examine. Judgment, paragraph 4.

The trial court had convicted Qaiser under Section 302(b) PPC on 6 December 2019 and imposed life imprisonment, Rs500,000 compensation under Section 544-A Cr.P.C. and six months’ simple imprisonment in default, with Section 382-B credit. The Lahore High Court maintained that result on 2 March 2022. Judgment, paragraph 1.

Article 133 protects the sequence of witness examination

The Supreme Court grounded its reasoning in Article 133(1) of the Qanun-e-Shahadat Order, 1984. It explained the sequence of examination-in-chief, cross-examination if desired by the adverse party, and re-examination if desired by the party calling the witness. Once chief begins, the corresponding right to cross-examine arises. Judgment, paragraph 4.

The triggering point is commencement, not completion. A party cannot avoid cross-examination by arguing that the witness’s chief was only partly recorded. The judgment says the right attaches even when the witness has uttered the first testimony about the facts of the case. Judgment, paragraph 4.

The Court distinguished that stage from a witness merely entering the box or taking the oath. Before examination-in-chief starts, the calling party may still decide not to examine that person. Once testimony begins, the opposing party’s procedural right must be protected. Judgment, paragraph 4.

Withdrawal after testimony requires judicial scrutiny

The judgment recognises a party’s choice of which witnesses to call, but rejects using that choice to make cross-examination illusory after evidence has been given. Any request to abandon a witness at that stage must be scrutinised by the court on its merits, considering the circumstances, necessity and fairness of the proceedings. Judgment, paragraph 4.

In developing this reasoning, the Court discussed the Peshawar High Court’s Akhtar Ali decision and decisions from Madhya Pradesh and Kerala. Those comparative authorities form part of the Supreme Court’s discussion. The statutory provision applied to this Pakistani proceeding was Article 133 of the Qanun-e-Shahadat Order, rather than an Indian evidence provision. Judgment, paragraph 4.

For trial practice, the implication is to identify the exact point at which chief commenced and ensure that the right to cross-examine is preserved in the record. The judgment treats the right as substantive; an unexplained prosecution announcement that a witness is given up does not itself answer the legal problem. Judgment, paragraph 4.

Why the procedural error did not overturn this conviction

The Supreme Court described giving up PW-11 after chief as a grave error, but assessed the rest of the evidence before deciding its consequence. It found PW-9 and PW-10 natural and believable witnesses whose presence was explained by their return from the mosque with the deceased. Judgment, paragraph 5.

Their family relationship did not, by itself, disqualify their evidence. The Court examined their shared residence, their reason for being at the gate, familiarity with the accused, the available electric light and the consistency of their account under cross-examination. It accepted their evidence on that record. Judgment, paragraph 5.

The medical evidence corroborated the occurrence and the firearm injuries described. The conviction therefore did not depend on treating the untested testimony of PW-11 as a substitute for the two witnesses whose evidence the defence had been able to challenge. Judgment, paragraphs 5–6.

The Court also considered that remanding the case after nine years would prolong already lengthy proceedings without serving a useful purpose in these circumstances. That was part of its assessment of this case, not a general rule that passage of time cures every denial of cross-examination. Judgment, paragraph 5.

Both petitions were dismissed

The Supreme Court found no ground to interfere with the maintained conviction or to enhance the sentence. It dismissed Qaiser’s jail petition and Ishtiaq Ahmad’s connected petition, refusing leave in both. The life sentence, compensation and associated directions remained in place. Judgment, paragraphs 1 and 7.

The decision consequently has two distinct aspects that should be reported together: a clear protection against giving up a witness after chief begins, and a finding that the error did not defeat the independently sufficient evidence in this particular trial. It ordered neither acquittal nor a retrial. Judgment, paragraphs 4–7.

Frequently asked questions

When does the right to cross-examine attach?

According to this judgment, it attaches when examination-in-chief begins, even with the first testimony about the facts. The opposing party need not wait for the entire examination-in-chief to finish. Judgment, paragraph 4.

Is entering the witness box or taking the oath enough?

The Court distinguished those steps from the start of testimony. It said a witness could still be given up before examination-in-chief commenced. Once the witness began to depose, the opposing party’s right attached. Judgment, paragraph 4.

Can the prosecution avoid cross-examination by giving up a witness?

It cannot unilaterally abandon a witness after examination-in-chief begins to defeat the defence’s right. The judgment requires judicial scrutiny of any such request, having regard to the circumstances, necessity and fairness of the trial. Judgment, paragraph 4.

Was Qaiser Mehmood acquitted because PW-11 was given up?

No. The Court called the procedure a grave error but upheld the conviction on the remaining reliable eyewitness and medical evidence. Qaiser’s life sentence remained in place. Judgment, paragraphs 5–7.

Did the complainant obtain an enhanced sentence?

No. The Court dismissed both the convict’s jail petition and the complainant’s connected petition, refusing leave in each. It did not enhance the life sentence or order a retrial. Judgment, paragraph 7.

Was the judgment pronounced on 30 September 2026?

The supplied copy identifies 30 September 2026 as the hearing date. Its announcement line is blank. A separate pronouncement date has not been confirmed and is not inferred from that hearing date. Judgment, case heading and announcement line.

Sources and complete judgment

This analysis is based on the complete 6-page supplied judgment in the connected Qaiser Mehmood and Ishtiaq Ahmad petitions, JP No. 228/2022 and Crl.P.L.A. No. 872-L/2022. The downloadable PDF is a labelled, searchable reference copy prepared from that text, preserving the source page order. It is not a certified copy or an official court-issued PDF. An independently accessible official copy was not located during this review.

• Read the complete judgment reference copy.
• Download the complete judgment reference copy.
• Case particulars, legal questions and judgment summary.

Paragraph 4 addresses Article 133 and the point at which cross-examination attaches; paragraphs 5–6 assess the remaining evidence; paragraph 7 dismisses both petitions. The hearing is dated 30 September 2026; the announcement line is blank.