1989 P Cr (PLP)

Nemo for the State. Date of hearing: 31st October, 1988. This will dispose of Criminal Revision Nos. 588, 663, 664 and 665 of 1976. They have arisen in the following circumstances. In their capacity of Members of the Union Councils, the petitioners were alleged to have misappropriated public money. Inquiries were held by the Supervisor, Basic Democracy, Kharian, and cases under sections 409, 420, 468 of the P.P.C. and section 5 of the Prevention of Corruption Act, 1947, were registered against them. When the files came up for hearing before the learned Special Judge on 28‑5‑1974, learned counsel for the petitioners objected that `the statements of the witnesses recorded during the inquiry have not been given to the accused although it is mandatory on the part of the prosecution to provide the statements of the witnesses recorded during the inquiry. On behalf of the prosecution it was admitted that statements of witnesses had been recorded during the inquiry. As those statements were not part of the judicial files, the learned Special Judge returned the case to the prosecution with the direction to do the needful at the earliest time and resubmit this challan. When the case was re‑submitted before the learned Special Judge on 29‑3‑1976, Mr. Abdul Hamid, Development Officer, stated that the statements of the witnesses recorded during the inquiry had either been lost or stolen. Therefore, on behalf of the prosecution, inability to supply copies of the statements of the witnesses was shown and the learned Special Judge directed that the trial of the cases should commence.

2. It is against this order, dated 29‑3‑1976 of the learned Special Judge that the petitioners have approached this Court.

3. Learned counsel for the petitioners refers to section 6, subsection (7) of the Pakistan Criminal Law Amendment Act, 1958 and maintains that it is mandatory for the prosecution to supply copies of the previous statements of the witnesses to the petitioners.

4. There is no question that the trial before the learned Special Judge is governed by the provisions of section 6 of the‑Pakistan Criminal Law Amendment. Act, 1958. Section 6, subsection (7) of that Act is couched in mandatory language; it provides that `the previous statements of the witnesses to be examined by the prosecution at the trial shall be supplied to the accused at least one week before the commencement of the trial. Thus, unlike section 241‑A of the Cr.P.C., which section requires copies of statements of all witnesses recorded under sections 161 and 164, Cr.P.C. to be supplied, section 6, subsection (7) of 1958 Act requires the previous statements of witnesses to be examined by the prosecution at the trial to be supplied to the accused' and it cannot be doubted that the statements of witnesses recorded during the inquiry are 'previous statements' within the meaning of that subsection.

5. But here, the previous statements of the witnesses are said to have been lost or stolen and if that be so, then the prosecution is unable to supply their copies to the petitioners. Learned counsel for the petitioners suggests that as the provision requiring the supply of copies is mandatory, the prosecution should have reconstructed the files from all available sources and supplied the copies of the previous statements to the petitioners. No such suggestion, it appears, was made before the learned Special Judge, nor is it known if it is possible for the prosecution to reconstruct the previous statements of the witnesses. Be that as it may, the trial has yet to commence and it will be for the learned Special Judge to see how the non‑supply of the copies of the previous statements will affect the prosecution case or how far it will prejudice the petitioners' case. That question can be determined only after the witnesses, whose previous statements have not been supplied to the petitioners, have been examined at the trial. It, however, appears to be clear that the non‑compliance of the provisions of section 6, subsection (7), of the 1958 Act cannot produce the result that the prosecution cannot examine the witnesses, copies of whose previous statements have not been supplied to the petitioners.

6. The petitions are disposed of accordingly. The files shall be sent back immediately to the Court of the learned Special Judge. S.A./M‑1064/L Order accordingly.