1989 P Cr (PLP)

RA. Awan for Petitioner. S.M. Zubair Addl. A.‑G. for the State. Abdul Sattar Ali for the Complainant.' Date of hearing: 2nd October, 1988. This petition under section 439, Cr.P.C. for the revision of orders, dated 14‑2‑1988 and 7‑5‑1988 of the learned. Additional Sessions Judge, Sheikhupura, has arisen in the following circumstances.

2. The petitioner Tahir Waheed and others are being tried under sections 148, 302, read with section 149 of the P.P.C. for the murders of Karamat, Niamat and Aslant which took place at 11‑00 a.m. on 10‑11‑1980. Earlier the case was tried by the Special Military Court No. 9, Sheikhupura; the trial, however, could not conclude and when the Martial Law was lifted the case was sent back to the ordinary Court. It is stated that during the trial before the Military Court, sixteen prosecution witnesses, including the eye‑witnesses and the recovery witnesses, were examined. The eye‑witnesses, it is further stated, had not supported the prosecution case against the petitioner. Before the learned Additional Sessions Judge, an application was made praying that the petitioner be supplied with the copies of the statements of the prosecution witnesses made before the Military Court. The learned Additional Sessions Judge summoned the record from the Military Court. The record received consisted of the statements said to have been recorded by the Military Court, but none of the statements bore the signatures of any Member of the Military Court. In the covering letter, by which the record was sent it was said that `the record of evidence of witnesses recorded by the Special Military Court is sent herewith (in sealed cover) as desired, which may please be returned when no longer required as soon as possible. The question, therefore, arose whether the petitioner was entitled to obtain certifies copies of the witnesses statements and whether the learned Additional Sessions Judge was competent 'in law to supply certified copies thereof to the petitioner. In the view of the learned Additional sessions Judge, the proceedings before the Military Court were governed by the Pakistan Army Act, 1952, and the Rules framed thereunder, but as `the original proceedings (documents) are not in the custody of this Court, therefore, certified copies cannot be supplied to the accused persons. The argument of the learned counsel that he wants to make use of these copies to contradict the witnesses is correct, but he can exercise this right after obtaining the certified copies from the relevant quarter'.

3. The view taken by the learned Additional Sessions Judge appears to be unexceptionable. By section 87 of the Qanun‑e‑Shahadat, 1984, every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefore, together with a certificate written at the foot of such copy that it is a true copy of such document. There is no question that the authorities having the custody of the record of a Military Court are the Military Authorities. Further, learned counsel for the petitioner was unable to refer to any provision in the Pakistan Army Act or the Rules made thereunder giving the petitioner or anybody else a right to inspect the record. Reference in this behalf may also be made to Rule 56 of the Pakistan Army Act, (Rules) 1954 which reads:‑ "Upon the Court awarding the sentence, the President shall date and sign the sentence and such signature shall authenticate the whole of the proceedings, and the proceedings upon being signed by the Judge-?Advocate, if any, shall be at once transmitted for confirmation." Here the stage for authenticating the proceedings of evidence was not reached, for, before the trial could conclude and any final order could be made, the Military Court ceased to have jurisdiction to .try the case. It is obvious that certified copies of unauthenticated documents cannot be given. Be that as it may the learned Additional Sessions Judge had, as the record stands, no means o: knowing whether the statements, whose copies are sought to be obtained, were in fact made by the witnesses and the record received from the Military Authorities is the true record of those statements.

4. Learned counsel for the petitioner suggested that the record of evidence should be sent to the Military Authorities for authentication but there appears no warrant in law for this suggestion to be acted upon. As seen above, by Rule 56, of the Pakistan Army Act Rules 1954, the President was required to date and sign the sentence and `such signature' shall authenticate the whole of the proceedings No sentence was awarded here and no question of signing the sentence and authenticating the proceedings, therefore, arose

5. The petition is dismissed. S.A./T‑71/L???????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.