2005 PLP 64 (YLR)

Date of hearing: 2nd June, 2004. This revision is directed against order dated 15-3-2004 passed by the A learned Additional Sessions Judge, Liaqatpur, whereby the application of the petitioner seeking examination of Ali Akbar, D.S.P., Range Crime, Bahawalpur, was dismissed.

2. The relevant facts are that the petitioner was facing trial in case F.I.R. No.71 registered at Police Station Taranda Muhammad Pannah on 21-5-1995 for offences under sections 302/148/149, P.P.C. One of the Investigating Officers was Ali Akbar, who was working as D.S.P., Range Crime Bahawalpur at that time. He had recorded the statements of certain witnesses, including Ghulam Murtaza and Allah Diwaya, who were produced by the prosecution during trial and their statements were recorded as P.Ws.5 and 6.

3. Learned counsel for the petitioner has argued that Ali Akbar, D.S.P., Range Crime, Bahawalpur, had conducted the investigation from 9-7-1995 to 30-7-1995 and recorded statements of the witnesses; that the petitioner would suffer an B irreparable loss if his statement was not recorded as Court-witness, as he had recorded the statements of P.Ws.5 and 6, who have been confronted with their statements (Exh.D.C. and D.F.) recorded during investigation by him.

4. Conversely, learned counsel for the respondent/complainant has argued that Ali Akbar was given up as having been won over by the prosecution and order dated 5-7-2001 in that regard was available on the record of the case; that the petitioner could produce Ali Akbar in his defence. Lastly, the learned counsel showed his fears that the real intention of the petitioner was to bring on record the opinion expressed by Ali Akbar, D.S.P., during investigation of the case.

5. The learned counsel appearing on behalf of the State has not seriously opposed this petition.

6. I have heard the learned counsel for the parties at length and have also gone through the relevant record.

7. Admittedly, Ali Akbar, D.S.P., Range Crime, Bahawalpur, had investigated the above noted case. It is also admitted that he had recorded the statements of certain prosecution witnesses, including those of Ghulam Murtaza and Allah Diwaya, who were produced before the Court as P. Ws.5 and

6. Ali Akbar had recorded the statements of aforesaid P.Ws. on 16-7-1995 and copies of their statements were also distributed to the petitioner by the learned trial Court itself. Both the witnesses have been confronted with their statements Exh.D.C. and D.F. recorded by, Ali Akbar, D.S.P., Range Crime. The learned trial court has overlooked the fact that the petitioner could take no advantage of the confrontation until and unless the statements were put to the Investigating Officer, who had recorded the same, as envisaged by clause (3) of Article 151 of the Qanun-e-Shahadat Order, 1984. The name of Ali Akbar, D.S.P. was mentioned at Serial No.24 in the list of witnesses in the Challan/report under section 173, Cr.P.C., submitted by the S.H.O. in case F.I.R. No.71 of 1995. Ali Akbar, essentially, remains a prosecution witness, as he had expressed his opinion in favour of some accused and against the others. In the circumstances, it appears that it is essential for the just decision .of the case that statement of Ali Akbar, D.S.P" as he then was, should be recorded as a Court witness. No prejudice would be caused to the respondent/complainant, as he would be within his right to cross-examine the witness. As far as the fears expressed by the learned counsel for the respondent/complainant that the opinion of the Court witness might be brought on the record and that might prejudice his case are concerned, suffice it to say that the opinion of the Investigating Officer about the guilt or innocence of accused plays an important role for submitting reports under section 173, Cr.P.C., but not thereafter. A reference in this respect is made to the case of Nasir Abbas v. The State 1995 SCMR 1333. In this regard, it would be advantageous to reproduce the observations made by a learned Division Bench of this Court in the case of Darghahi and others v. The State PLD 1958 (W.P.) Lahore 300 hereunder:

"The Sessions Judge felt as if he was helpless in the matter and allowed his mind to be influenced by the opinion of the Investigating Officer, which was irrelevant and was not admissible under any of the provisions of the Evidence Act." It was further observed therein as under:-- "Judicial Officers could not be permitted to allow their judicial conscience to be moulded by the opinion of the Investigating Officers. The guilt or innocence of an accused must be judged according to accepted rules of law. It will be extremely hazardous to place reliance upon the opinion of police officers. And to make it a cornerstone of one's decision is to allow oneself to be a tool in the hands of the police. This is likely to shake the very confidence of the people in the judiciary. The judiciary was under a sole pledge to keep the fountain justice pure and clear."

8. The upshot of the whole discussion that I am of the considered opinion that the impugned order dated 15-3-2004 passes by the learned trial Court is not sustainable and the same is set aside. The learned trial Court would summon Ali Akbar, D.S.P., Range Crime, as a Court witness in this case for the just decision of case. Needles to say that both the parties would have a right to cross-examine him. With these observations, this petition is allowed. H.B.T./F-61/L Petition allowed