P L D 1987 Lahore 245 (PLP)

Ss. 233, 239 & 200-Penal Code (XLV of 1860), Ss. 302, 307, 304, 148 & 149-State challan case and private complaint case-Prosecution story being same but only number of accused connected with commission of offence different-Both such cases, held, could be consolidated and tried together-Procedure to be adopted in such cases highlighted. Atta Jilani's case 1980 P Cr. L J 901 and Nur 1llahi's case P L D 1966 S C 708 applied. .

Ss. 233, 239, 200 & 540-A-Penal Code (XLV of 1860), Ss. 302, 307, 304, 148 & 149-State challan case and private complaint case-Prosecution story and defence version basically different Certain accused named by complainant found innocent or certain persons not named found to be liable for offences committed Complaint case, held, was to be taken up first and prosecution witnesses listed in police challan to be also examined as court witnesses under S. 540-A, Cr. P. C.-Police challan to be taken up only if complaint case resulted in acquittal and in case of conviction, police case to be withdrawn by public prosecutor under S. 494, Cr. P. C. Atta Jilani's case 1980 P Cr. L J 901 and Nur Illahi's case P L D 1966 S C 708 applied. -- Ss. 265-C, 200 & 162-State challan case and private complaint case-Prosecution story being same but only number of accused connected with commission of offence different-Copies of statements of prosecution witnesses recorded by police during investigation in State challan case can be delivered to accused under S. 265-C, Cr. P. C.-Reasons recorded. Where prosecution story was same but only number of accused connected with commission of offence differed in State challan case and private complaint case and the only question for determination was as to whether copies of the statements of prosecution witnesses recorded by the police during investigation in the State challan case could be delivered to the accused under section 265-C, Cr. P. C. it was held that if a strict view of the provision of subsection (2) of section 265-C, Cr. P. C. is taken, the same may not be permissible. However, if the case is looked at from the angle that both the cases figuratively have been consolidated, then it is not understandable why such copies cannot be supplied. Had the police challan disclosed the names of S and M in column No. 2 of the challan, the trial Judge could have summoned them and the State challan case would have been taken up first for trial, in which case copies of the statements of the four witnesses would have been delivered to the accused. The fact that it did not, thus bringing into play the rule stated in Atta Jilani's case 1980 P Cr. L J 901, cannot mean that copies of documents which otherwise would have been available to the accused so that the3 could have known beforehand what offences they would have to meet a~ the trial, would now be lost to them. Even assuming, for the sake of argument, that section 265-C, Cr. P. C does not come to the assistance of the accused, but section 162, Cr. P. C would come into play no sooner any of the said witnesses appeared to give evidence, in which case the accused would have the right to demand copies of the statements made by such witnesses to the police during the investigation in the State challan case. Such copies normally are supplied at the time of cross-examination, but there is no bar to the same being supplied earlier to obviate inconvenience and delay in the trial. Section 162, Cr. P. C. even applies to trial started on private complaints and witnesses can be confronted with their statements made to the police during investigation. In a private complaint case, a person can also be confronted with his statement made by him to the police in investigation made in a different case. The provisions of section 265-C, Cr. P. C. should be liberally construed in the spirit in which they had been enacted. The object of section 265-C, Cr. P. C. was to meet the vacuum created by the abolition of commitment proceedings and to make available to the accused, through copies of statements of all the witnesses examined by the police, all the available evidence which the prosecution had for the unfoldment of the true case before the Court and that the words "all the witnesses" in subsection (1) of section 265-C, Cr. P. C. did not mean "prosecution witnesses" and copies of statements of witnesses supporting the defence could also be ordered to be delivered to the accused. Considering that the police statements under section 162, Cr. P. C. can also be supplied at a stage earlier than cross-examination. The said police statements can be supplied before the commencement of the trial. This salutary procedure would be in aid of section 265-C, Cr. P. C. and would otherwise secure the ends of justice. Atta Jilani's case 1980 P Cr. L J 901 ; Zulfiqar Ali Bhutto's case P L D 1979 S C 53 ; Mst. Aziz Begum's case P L D 1981 Kar. 141: ; Raja KhUshbakhtur Rahman's case 1985 S C M R 1314 ; Subbayya's case A I R 1933 Mad. 65 ; Nur lllahi's case P L D 1966 S C 708 ; Mumtaz's case 1984 S C M R 221 ; Bakhtawar Singh's case A I R 1951 Raj. 145 ; The Central Board of Revenue, Government of Pakistan's case P L D 1960 S C 81 ; Hari Mahadeo Gore's case A I R 1927 Nag. 24 ; Saif Ullah's case P L D 1986 S C 226 and Shivlal Umraosingh Agarwal's case A I R 1938 Nag. 110 ref. , JUDGMENT This judgment will dispose of a revision petition (Cr. R. 74 of 1987) filed by Aziz-ur-Rahrnan, petitioner, against the order of a learned Additional Sessions Judge of Lahore dated 7-2-1987 refusing to deliver to him copies of the statements of the witnesses recorded by the police in the State challan case and a revision petition (Cr. R. 120 of 1987) filed by the same petitioner against the order of the same learned Judge dated 3-3-1986 directing the complaint case to be taken up first for disposal.

2. The brief facts leading upto both these petitions are that a case was registered by Mst. Asmi Khan, widow of Muhammad Rafiq deceased, on 27-7-1985 at Police Station Model Town, Lahore, with regard to the murder of her husband Ch. Muhammad Rafiq Advocate, deceased. The accused named in the F.

1. R. were Aziz-ur-Rahman, the present petitioner, and Mazhar Hussain, Imran Aftab, Saeed Illahi and Muhammad Azam Akbar. Muhammad Azam Akbar and Saeed Illahi, accused, were got discharged from the Illaqa Magistrate by the police on 16-9-1985 and 19-9-1985 respectively. The police submitted a challan against Aziz-urRahman, the present petitioner, and Manzoor Hussain, showing their names in column No. 3, and Imran Aftab, a proclaimed offender, showing his name in red ink in colum No.

2. On 10-2-1986, a learned Additional Sessions Judge of Lahore summoned Aziz-ur-Rahman, the present petitioner, and Manzoor Hussain to face trial in the State challan case. Meanwhile, on 16-1-1986 Mst. Asmi Khan, complainant, had Fled a private complaint under section 302/307/304/148/149, P. P. C. against Aziz-ur. Rahman, the present petitioner, and Mazhar Hussain, Imran Aftab, Saeed-ud-Din and Muhammad Azam Akbar, accused. 1n the private complaint the same learned Additional Sessions Judge summoned the five accused to face their trial and issued process against them. The order sheet shows that the learned trial Judge has proposed to start the trial of the private complaint case filed by Mst. Asmi Khan, complainant. There is no order to suggest that the witnesses in the police challan case will also be summoned by the trial Magistrate as court-witnesses under section 540-A, Cr. P. C., in case they are not summoned by the complainant in her complaint case. On 19-3-1986; Aziz-ur-Rahman, the present petitioner, filed an application under section 265-C, Cr. P. C. for the supply of copies of the statements of Mst. Asmi Khan, Aman Ullah, Atta Muhammad alias Babu and Mst. Fojia, four of the prosecution witnesses, recorded by the police in the State challan case during investigation. The learned trial Judge, by his order dated 7-2-1987, dismissed the said application. Being aggrieved by the said order, Aziz-ur-Rahman filed a revision against the same and also another revision for both the complaint and challan cases to be consolidated for disposal, which revision petitions are now before me for disposal.

3. On behalf of Aziz-ur-Rahman, petitioner, it is submitted that both the State case and the private complaint case should be consolidated for disposal, as the occurrence in both the cases is the same, though the names of some of the accused are different. In this connection, the learned counsel has relied upon Alta Jilani's case (1), Zulfiqar Ali Bhutto's case (2), htst. Aziz Begum's case (3) and Raja Khushbakhtur Rahman's case (4). It is urged that the various orders passed by the learned trial Judge in both the State challan case and the private complaint case do not disclose how these two cases are to be dealt with and this may eventually lead to difficulties later and it is necessary for this Court to clarify that both the cases should be consolidated for disposal. It is further submitted that once consolidation is ordered, the copies of the statements of the four witnesses recorded by the police in the State challan case would invariably have to be supplied under section 265-C(1), Cr. P. C. It is further submitted that when Mst. Asmi Khan, Aman Ullah, Atta Muhammad alias Babu and Mst. Fojia P. Ws. will appear to give evidence in the complaint case, the Court, on the request of the accused, would have to supply copies of the their statements recorded by the police in the State challan case, for purposes of cross-examination under section 162, Cr. P. C. and, therefore, the said copies should be supplied now. In this (1) 1980 P Cr. L J 901 ??????????? (2) P L D 1979 S C 53 (3) P L D 1981 Kar. 141??????????? (4) 1985 S C M R 1314 connection the learned counsel has relied upon Subbayya's case (1) and Shivlal's case (2).

4. On behalf of Mst. Asmi Khan, complainant-respondent it is submitted that the principle of Nur Illahi's case (3) and Mumtaz's case . (4) applies to the instant case and that the private complaint case alone can be tried first and since section 265-C(2), Cr. P. C. does not provide for supply of copies of the statements of the witnesses recorded by the police under sections 161 and 164, Cr. P. C. in the State challan case, the said statements cannot be so supplied and the order of the trial Judge dated 7-2-1987 is legal and proper.

5. On behalf of the State, it is submitted that the statements of the witnesses recorded during police investigation under sections 161 and 164, Cr. P. C. in the State challan case would ultimately have to be provided to the accused under section 162, Cr. P. C. in the private complaint case when they appear to give evidence and if they can be provided the said statements during cross-examination, they can also be provided the same some time earlier, to obviate inconvenience and delay in the trial. In this connection the learned counsel has relied upon Bakhtawarsitrgh's case (5), The Central Board of Revenue, Government of Pakistan's case (6) and Hari Mahadeo Gore's case (7). 6. 1 have given my anxions consideration to the arguments adressed by the learned counsel for the petitioner, the complainant-respondent and the State. The first question that arises for determination is as regards the mode of trial. The version in the State challan case and the private complaint case is the same. The witnesses in both the cases are the same. The only difference is that in the State challan case, Aziz-ur-Rahman, Mazhar Hussain and Imram Aftab are shown as accused, against whom a prima facie case is stated to have been made out, whereas in the private complaint case the said three persons and Saeed Illahi and Muhammad Azam Akbar have been found to be persons against whom a prima facie case stands made out. Where the prosecution story is the same, but only the number of accused connected with the commission of the offences differ, the rule in Alta Jillani's case (supra) is pressed into service to determine the mode of trial. Where, however, the prosecution story and the defence version basically differ and certain accused persons named b; the complainant are found innocent or certain persons not named are found to be liable for the offences committed, the rule in .Nor lllahi's case (supra) is pressed into service. The view in Alta Jillani's case (supra) i; that both such cases can be consolidated and tried together, but in actua practice what is done is that one of the two cases is taken up, in which the larger set of accused are named, and such witnesses not examined it the case taken up, but whose names appear in the other case, are examiner as Court witnesses under section 540-A, Cr. P. C. Sometimes where the accused found innocent are mentioned in column No. 2 of the police challan, the trial Judge summons them to face trial, which obviates the difficulty of having to take up the private complaint case first. Basically therefore, there is no "consolidation", but figuratively perhaps the expression is used to indicate that both cases being connected with the same version (1) A I R 1933 Mad. 65 ??????????? (2) A I R 1938 Nag. 110 (3) P L D 1966 S C 708??????????? (4) 1984 S C M R 221 (5) A I R 1951 Raj. 145??????????? (6) P L D 1960 S C 81 ??????????? l71 A I R 1927 Nary. 24 whichever case is tried first, whether the same succeeds or fails, the other will not be taken up later. This is in contradiction to the rule stated in Nur Illahi's case (supra), where the private complaint case has to be taken up first and after decision is given there )n, the .Public Prosecutor can then decide whether to press for the trial of the State challan case or not. Thus, even applying the rule stated in Atta Jillani's case (supra) in actual fact the semantics in the present case leads to the application of the rule laid down by the Supreme Court in Nur 1llahi's case (supra). The learned trial Judge in the instant case has proposed to take up the private complaint case first for trial. This is understandable, as five accused are named in this case, whereas in the State challan case only three are named. There is no specific order by the learned trial Judge that he will call such of the witnesses named in the State challan case, who may not be examined in the private complaint case, as Court witnesses under section 540-A, Cr. P. C. However, I assume that he will be examining such witnesses, for this is the principle adopted by Courts in cases which are treated as consolidated and tried under the rule stated in Atta Jillani's case (supra).

6. The only question that now remains to be determined is whether copies of the statements of Mst. Asmi Khan, Aman Ullah, Atta Muhammad alias Babu and Alst. Fojia P. Ws. recorded by the police during investigation in the State challan case can be delivered to the accused under section 265-C, Cr. P. C. If a strict view of the provision of subsection (2) of section 265-C, Cr. P. C. is taken, the same may not be permissible. However, if the case is looked at from the angle that both the cases figuratively have been consolidated, then it is not understandable why such copies cannot be supplied. Had the police challan disclosed the names of Saeed Illahi and Muhammad Azam in column No. 2 of the challan, the trial Judge could have summoned them and the State challan case would have been taken up first for trial, in which case copies of the statements of the four witnesses would have been delivered to the accused. The fact that it did not, thus bringing into play the rule stated in Att Jillani's case (supra), cannot mean that copies of documents which otherwise would have been available to the accused so that they could have known beforehand what offences they would have to meet at the trial, would now be lost to them. The Supreme Court in Saif Ullah's case (1) left the question as regards the extent to which this section could be liberally construed for determination at a future stage, after observing that the said matter merited attention. Even assuming, for the sake of argument, that section 265-C, Cr. P. C. does not come to the assistance of the accused, but section 162, Cr. P. C. would come into play no sooner any of the said four witnesses appeared to give evidence, in which case the accused would have the right to demand copies of the statements made by such witnesses to the police during the investigation in the State challan case. Such copies normally are supplied at the time of cross-examination, but there is no bar to the same being supplied earlier, to obviate inconvenience and delay in the trial. See Hari Mahadeo Gore's case (supra). Section 162, Cr. P. C. even applies to trials started on private complaints and witnesses can be confronted with their statements made to the police during investigation. See Har? Mahadeo Gore's case (supra), Bakhtawarsingh's case (supra) and Subbayya's case (supra). In a private complaint case, a person can also be confronted with his statement made by him to the police in investigation made in a different case. See Shivlal Umraosingh Agarwal's (1) PLD1986SC226 case. In Zulfiqar Ali Bhutto's case (supra) it was held that the provisions of section 265-C should be liberally construed in the spirit in which they had been enacted. In Nasrullah's case (supra) this Court held that the object of section 265-C, Cr. P. C. was to meet the vacuum created by the abolition of commitment proceedings and to make available to the accused, through copies of statements of all the witnesses examined by the police, all the available evidence which the prosecution had for the unfoldment of the true case before the Court and that the words "all the witnesses" in subsection (1) of section 265-C, Cr. P. C. did not mean prosecution witnesses and copies of statements of witnesses supporting the defence could also be ordered to be delivered to the accused. Considering that the police statements under section 162, Cr. P. C. can also be supplied at a stage earlier than cross-examination, I would hold that the said police statements can be supplied before the commencement of the trial. This salutary procedure would be in aid of section 265-C, Cr. P. C. and would otherwise secure the ends of justice. I would so hold accordingly.

7. For the foregoing reasons, revision petition (Cr. R. 74 of 1987) is accepted and the order of the learned Additional Sessions Judge, Lahore, dated 7-2-1987 is set aside and the learned trial Judge shall deliver copies of the statements made by the witnesses to the police during the investigation of the State challan case, to the accused. Revision petition (Cr. R. 120 of 1987) is disposed of with the observation that the witnesses cited in the State challan case shall be examined as Court witnesses in the private complaint case, if they are not produced as witnesses in the private complaint case. M. s. A./A-44/c,???? Petition accepted.