P L D 1966 (W (PLP)

Fakhruddin Pirzada for A. A.‑G. for Petitioner. A. R. Tayyib for Respondents. This is a reference made by the learned District Magistrate, Bahawalpur. The questions to be decided in this reference relate to the scope and application of section 251‑A of the Code of Criminal Procedure. Does it apply only to warrant cases or does it also apply to the commitment proceedings and the summons trials? Another question which arises for determination is whether in a case where section 251‑A is applicable, the accused is entitled to the copies of the statements recorded by the police under section 161 of only those witnesses whom the prosecution intends to examine at the trial or is he to be supplied with the copies of the statements of all the persons who were examined by the police during the course of investigation, either at the instance of the investigating officer or of the accused.

2. Section 251‑A was added by the Code of Criminal Procedure (West Pakistan Amendment) Act XVII of 1964, and it reads as:‑.

"251‑A. Supply of copies of statements of section 161 to the accused.‑In all cases instituted upon police report, except those tried summarily, copies of statements of all .witnesses recorded by the Police under section 161 and of the inspection note recorded by an investigation officer on his first visit to the place of occurrence, shall be supplied to the accused seven days before the commencement of the trial free of costs: Provided that if any part of a statement recorded under section 161 is such that its disclosure to the accused would be inexpedient in the public interest, such part of the statement shall be excluded from the copy of the statement furnished to the accused."

3. Section 251‑A appears in Chapter XXI which deals with the trial, of warrant cases by the Magistrates. This Chapter starts with section 251 and ends with section .259. Chapter XX deals with the trial of summons cases by Magistrate. It starts with section 241 and ends with section

250. Chapter XXII deals with the summary trials. It commences with section 260 and ends with section

265. Chapter XXIII deals with the trials before High Courts and Courts of Sessions. It starts with section 266 and ends with section 335.

4. Since section 251‑A appears in Chapter XXI under the heading "the trial of warrant cases", ordinarily the provisions of this section should apply only to the warrant cases because headings do constitute important parts of the Act and the title of a chapter certainly throws light upon the meaning of the section: In Hammersmith and City Railway Co. v. Brand (1869 L R 4 H L 171) it was held by the House of Lords that a heading could be usefully referred to, to determine the sense of any doubtful expression in any particular section ranged under a particular heading. The headings of different portions of a statute can, therefore, be referred to, to determine the sense of any doubtful expression in a section ranged under any particular heading. Lord Goadard, C. J. in R. v. Survey ((1947) 2 A E R 276) held, "while, however, the Court is entitled to look at the headings, in an Act of Parliament to resolve any doubt they may have as to ambiguous words, the law is clear that those headings cannot be used to give a different effect to clear words in the section where there cannot be any doubt as to the ordinary meaning of the words . . . In my opinion we do not require to refer to the headings to ascertain the construction of such clear words as these." The heading, therefore, is not in all cases a determining factor regarding the interpretation of the provisions of a section. I the language of a section is clear headings are not to be taken into consideration. They cannot be used to cut down the clear words of section. Due consideration must be given to the words of the section, independent of the heading, for the purpose of arriving at a conclusion as to what according to the Legislature was the purpose of enacting the section. In section 251‑A it is mentioned, "In all cases instituted upon police report, except those tried summarily." The significant words used are "all cases" and "except. those tried summarily". If section 251‑A was to apply only to the trial of warrant cases, there was no need to mention either "all cases" or "except those tried summarily". Summary trial is held under Chapter XXII and if section 251‑A by the fact that it is included in Chapter XXI, is to apply only to warrant cases, there was no need at all to specifically state that it will not apply to summary trials. The Legislature does not employ any useless or superfluous language; and in its wisdom uses generally the words and the sentences which are necessary to, convey its intention and meaning. The Legislature when it unmistakbly used the words "except those tried summarily" did so to make' its intention known that section 251‑A will not apply to summary trials, which in other words means that but for such a specific exclusion, it would have applied to summary trials as well. It is, therefore, clear that the Legislature did not intend the exclusion of the application of section 251‑A from other trial like summons and Sessions trial. In fact the particular exclusion of "summary trials" from the e operation of section 251‑A proves that its provisions apply to all other trials. Thus the application of section 251‑A is not in any way dependent on the fact that it is a warrant trial. What is required is that there should be a case instituted upon a police report and once this is established, the Courts will enforce section 251‑A in "all cases" irrespective of the fact whether the case pertains to a summary trial, Sessions trial or commitment proceedings. The meanings of section 251‑A are clear and in no way doubtful. The beading of the Chapter will, therefore, in no way affect, limit or control the application of section 251‑A. In Secretary of State v. Mask & Co. (AIR 1940PC105) their Lordships of the Privy Council did not consider the heading of a chapter in a Statute to be of any material assistance in the construction of the Sea Customs Act. For these reasons, I think that although section 251 appears under the heading "Trial of warrant‑cases", the heading does not control the application of section 251‑A and its provisions apply in all cases except those which are triable summarily.

5. It is now to be examined whether under section 251‑A the accused is entitled to the copies of the statements of all the witnesses recorded by the Police or only the copies of such witnesses as the prosecution wants to produce as is contended on behalf of the State. If the intention of the Legislature had been to supply the accused only with the copies of the statements of the witnesses to be produced by the prosecution during the trial it would not have made by way of express amendment any such provision, because it was already so provided in the Code of Criminal Procedure, and the Court under section 162 is bound to grant to the accused at his request copies of statements made to the police during the investigation of the persons called for the prosecution in an inquiry or a trial. It is true that under the proviso to section 162, the accused can ask for copies of the prosecution witnesses only during the course of an inquiry or trial, but under section 25‑1‑A he is to be supplied with the; copies of all the witnesses recorded by the Police under section 161 .at least seven days before the commencement of the trial. The; difference is there, but if the intention of the Legislature in introducing section 251‑A was only to supply the copies of the statements of the prosecution witnesses mentioned in section 162, Cr. P. C. seven days earlier instead of doing so when they appeared as witnesses, it would have achieved the result by amending section 162 itself. Again if this had been the intention, the Legislature would have indeed used instead of "all witnesses the words "witnesses called for the prosecution", as it was used in the proviso. The words "all witnesses" in section 251-A cannot be taken to mean only witnesses called for the prosecution, and this was also the intention of the Legislature which is manifest from the different provisions of the Amending Act. The Code; of Criminal Procedure (West Pakistan Amendment) Act XVII of 1964, not only introduced section 251‑A but it also amended sections 256 and

257. Whereas under the original section 256 it was provided that the accused should be asked to state whether he wished to cross‑examine any prosecution witness whose evidence had been taken and if he so wished, the witnesses named by him had to be recalled and be was allowed to cross- examine them, after the amendment, the accused cannot cross- examine any of the witnesses who had already been examined. The original section 257, after the accused had entered upon his defence made it obligatory on the part of the Magistrate to issue process, at the instance of the accused, to compel witnesses named by him to attend. He could also examine the prosecution witnesses. After the amendment he cannot apply to the Magistrate for summoning any witness whom he had already cross‑examined. Under the original Act, the accused in the warrant cases had three opportunities to cross‑examine the prosecution witnesses (a) before the charge was framed, (b) after the charge was framed and before the accused was called upon to enter upon his defence; and (c) after the accused had entered upon his defence. Now under the amended law the accused has the right to cross‑examine the witnesses only once. The accused now is to exhaust his right of cross‑examination on the very first occasion. It is not possible to cross‑examine a witness effectively unless the accused knows the facts and circumstances under which he made the statement before the police. He must also know as to who appeared before the police during the cross‑examination and what statement he gave. The police may not cite any person as a witness, but that does not mean that his statement necessarily is irrelevant. It is possible that a person who gave his statement during investigation may not be cited because it is not helpful to the prosecution. He may be a truthful witness and his statement may completely belie the other witnesses. Unless, therefore, the accused knows about such a witness or the statement given by him, how can he cross‑examine a prosecution witness whose verity can be successfully challenged with reference to the statement of such a person. Earlier the accused could get such an information during the trial by the cross‑examination of the prosecution witnesses or the investigation officer and then utilize it by further cross‑examination of the witnesses under section 256 or section

257. He cannot do it now. It was, therefore, thought necessary to equip him with all such information before the trial started by giving him copies of the statements of all persons recorded under section 161 of the Code of Criminal Procedure. The accused is presumed to be innocent, and it is a funda mental principle of administration of justice to give all reasonable facilities to him to defend himself properly. The right of the accused to cross‑examine a prosecution witness more than once as already stated, was taken away by the amendment. It was thought necessary to do so to avoid the delay in the trials and thereby to achieve the well coveted end of a speedy justice. The Legislature at the same time made sure that the accused does not suffer by such an amendment. They, therefore, to facilitate him m his trial specifically provided that he should be given the copies of all the statements recorded by the police at least seven days before the trial commenced. They did not place any limitation that the copies should be only of the statements of the witnesses whom the prosecution is to produce, or that they should be of material witnesses, as it was recommended by the Law Commission. Once the accused is given the copies of all the statements, and that too, much before the commencement of the trial, what more is needed for the accused to have more than one opportunities to cross‑examine a witness. By the amendment whereas the object of a speedy trial may be achieved, a sub stantial and a reasonable facility has also been given to the accused to defend himself.

6. The preamble of the Amending Act reads as follows:‑

"Whereas the Law Commission appointed by the President has made certain recommendations for amendment of the Code of Criminal Procedure, 1898; And whereas it is considered expedient to amend the Code of Criminal Procedure, 1898, in its application to the Province of West Pakistan to give effect to certain recommendations of the Law Commission; It is hereby enacted as follows:" Learned counsel for the State argued that section 251‑A is based on the recommendation of the Law Commission and should, therefore, be interpreted with the aid of those recommendations. According to the accepted principles of interpretation of Statutes it is not permissible to refer to them as legitimate aid to the construction of a Statute. In Administrator‑General v. Prem Lal Malik (22 I A 107) the Judicial Committee held that even the proceedings of the Legislature which include the statement of objects and reasons; the Report of the Select Committee; the draft stages of the Bill and the Debates of the Legislature cannot be used for the interpretation of a Statute. The case here is different. The Preamble makes a reference to the recommendation of the Law Commission and the purpose of Legislature is to give effect to those recommendations. The recommendations in fact constitute the Preamble itself. To make a reference to them, under the circumstances, will be a reference to the Preamble. In Haider Shah v. Mukhtar Hussain Shah (P L D 1963 Lah. 548) it was held by their Lordships that a preamble could be referred to in certain cases to ascertain the intention of the Legislature. It affords' in a case where the language of the enactment is not clear "a key to the construction of the Statute'' and can, therefore, be referred to for the purpose of finding out the object and the intention of the enactment. If, however, there is an inconsistency or conflict in the plain meaning of the Act and the Preamble, the latter has to give in and the Statute is to be construed according to its plain meaning. The provisions of section 251‑A are quite clear, and reference to the Preamble is not necessary to understand its meaning and scope, I may, however, reproduce the recommendations of the law Commission to see how far section 251‑A is in accord with them. They are:‑

"The question has also received consideration whether the accused should have the right to inspect police diaries after the case has been put in Court. We do not consider this to be a desirable measure. Instead we suggest that in State challans, whether triable by a Magistrate or by the Sessions Court, the trial should not commence on the date when the challan is presented in Court. On that date, legibly written copies of detailed statements of all material witnesses intended to be produced at the trial, along with a copy of the inspection note recorded by the investigating officer on his first visit to the site of occurrence, must be supplied to the accused by the prosecuting agency through the presiding officer. We have made provision for supply of such copies in Sessions trials and we suggest that a similar provision should be made for Magisterial trials. At least three days should elapse between the presentation of the challan and the date of the trial in a Magistrate's Court. This provision, however, should not apply to cases tried summarily." If the recommendations of the Commission had been accepted in terms they were made, the provision in the Act would have been made to supply the accused with the copies of the statements of only the material witnesses and not all the witnesses and, moreover, only of such material witnesses which the prosecution intended to produce at the trial: There was no difficulty for the Legislature, if it had really so intended, to enact the provision strictly in accordance with the recommendations. The Legislature, in fact, made a substantial departure from the recommendations in enacting section 251‑A. In the section there is no reference whatsoever to the "material witnesses" nor is the right of the accused restricted to get only the copies of the "material witnesses" intended to be produced at the trial. The accused, under the section is to be supplied with the copies of statements of "all witnesses" recorded during the investigation under section 161, Cr. P. C. The conscious and intentional departure by the Legislature from the recommendation shows that it really meant to give greater facility to the accused with an aim to enable him to defend himself properly. The meaning of the section being clear, the preamble and the recommendations of the Law Commission cannot be referred to for giving a different and restricted meaning to the same, nor can they be used in aid of its construction. In construing section 261‑A, the recommendations of the Law Commission cannot be made the basis for restricting or limiting the application of the words "all witnesses" occurring therein to mean the "material witnesses" and for also adding the words "intended to be produced at the trial". I may, with advantage, refer to the observation of Lord Halsburg, L. C., in Powell v. Kempton Park Racecourse Co. "Two propositions are quite clear, one that preamble affords useful light as to what a statute intends to reach, and another that if an enactment is itself clear and unambiguous no preamble can qualify or cut down the enactment." I am, therefore, of the opinion that the accused under section 251‑A is entitled to the copies of the statements of all the witnesses which are recorded by the police during the course of investigation, irrespective of the fact whether they were examined by the investigating officer or produced by the accused or that they appeared themselves.

7. The reference is accordingly answered. S. A. H./S. Q. Reference answered.