1999 P Cr (PLP)

Date of hearing: 5th October, 1998. Brief facts of the instant case are that the petitioner filed an application under section 265‑C, Cr.P.C. before the learned Trial Court where he is facing trial in F.I.R., No.485 of 1996, dated 11‑11‑1996 under section 302/34, P.P.C. Police Station Saddar Samundari to supply him the copy of the statements of "all witnesses" recorded during investigation, although those witnesses were not cited as "witnesses of prosecution". At the bottom of that application he gave all the names of the witnesses which are Nos.2 to 32 and the copy of the final report of investigation conducted by Ahmad Zaki D.S.P. Crimes Branch, Lahore on 24‑5‑1997 under section 173, Cr.P.C. The bare perusal of the list of the witnesses shows that those were the supplementary statements of the witnesses mentioned in the Zimnis. This application was contested by the State.

2. The learned Additional Sessions Judge vide an order, dated 5‑9‑1998 decided two applications moved by the accused, the first for enabling the witnesses to bring alongwith record of Register No. 19 and also for requisition of record of square lands Nos.74 to 80 and second application was filed under section 265‑C, Cr.P.C. The Court accepted the first application but rejected the second one given under section 265‑C, Cr.P.C. on the ground that the copies of the statements of the witnesses mentioned in paras.2 to 32 of the application were recorded by the Investigation Officer during the course of investigation and they formed part of investigation and are also from the Zimni recorded by the Investigation Officer which neither comes under section 161, Cr.P.C. nor under section 172, Cr.P.C., therefore, the same cannot be supplied to the accused. Hence, the application was dismissed with the observation that the copies under sections 161 and 173 of the Cr.P.C. and statements recorded by the Investigating Officer have been delivered to the accused on 3‑1‑1998. The legality of this order is under challenge in the instant Criminal Revision.

3. The learned counsel for the petitioner has submitted that section 265‑C, Cr.P.C. is very clear as it relates to the supply of statements and documents to the accused and it relates to the statements of "all witnesses" recorded under sections 161 and 164, Cr.P.C., therefore, the learned Trial Court has caused injustice to the accused and has deprived him from the right of cross?examination and properly defending himself through refusal of supply of these documents before the commencement of the trial. He has placed reliance on Sohail Azam v. The State 1985 PCr.IJ

388. The State v. Gaman Khan and others PLD 1966 B.J. 30, Nasrullah v. The State 1980 PCr.LJ 5, Ghulam Rasool alias Rasoola v. The State 1978 PCr.LJ 455, Ch. Noor Muhammad v. The State 1969 PCr.LJ 568 Haq Nawaz v. The State 1989 PCr.LJ 316, Ghulam Muhammad v. The State 1985 SCMR 1442, Muhammad Aslam v. The State 1995 PLD Lah. 632 and Subhanuddin v. The State 1976 SCMR

506. The gist of all these authorities is that the statements of witnesses examined by the Police during the course of investigation or recorded in Zimni or in gist form judiciously pronounced as 'boiled statement' either pointing towards guilt or innocence of the accused, the copies of the same should be provided to the accused so that the accused should not be prejudiced in his defence or failed to adopt a particular line of defence.

4. Learned A.A.‑G. has vehemently contested this application and submitted that the copies of the statements of the witnesses who were examined during investigation by the Investigating Officer cannot be supplied to the accused. He has relied on Abdul Majid v. The State 1995 PCr.LJ 1124 (Lahore), Muhammad Ashraf etc. v. The State 1984 PCr.LJ 1, Paresh Kalyandas Bahasvar v. Sadiq Yakubbhai Jajamadar and others 1993 SCMR 2209, Naveed Asif v. The State PLD 1988 SC 99 and Subhanuddin v. The State 1976 SCMR 506.

5. I have heard the learned counsel for the parties and have perused the record.

6. It is apparent from the order of the learned Trial Court that the copies of the statements of the witnesses recorded by the Investigating Officer during investigation have already been supplied to the accused but the accused has given an application, under section 265‑C, Cr.P.C. for the supply of the copies of the statements of "all the witnesses" as envisaged under section 265‑C, Cr.P.C. which is reproduced as below: "265‑C. Supply of statements and documents to the accused.‑‑‑ (1) In all cases instituted upon report, copies of the following documents shall be supplied free of cost to the accused not later than seven days before the commencement of the trial, namely:‑‑‑ (a) the first information report; (b) the police report; (c) the statements of 'all witnesses' recorded under sections 161 and 164; and (d) the inspection note recorded by an Investigation Officer on his first visit to the place of occurrence and the note recorded by him on recoveries made, if any; Provided that, if any part of a statement recorded under section 161 'or section 164 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."

7. The relevant sections which deals with the supply of the statements are 161 and 162, Cr.P.C., 241‑A and 172, Cr.P.C. As the Criminal Procedure Code provides the procedure for the conduct of trial in order to secure the ends of justice, therefore, the supply of the documents to the accused is governed by sections 161 and 162, 172 and 265‑C read with section 241, Cr.P.C. Under section 241, Cr.P.C. the word 'copies' of statements of "all witnesses" recorded under sections 161 and 164, Cr.P.C. and of the inspection note recorded by .the Investigating Officer on his first visit to the place of occurrence is made mandatory, to be supplied, free of cost, to the accused not less than seven days before the commencement of the trial. All the judgments which are mentioned by the learned counsel for the Petitioner are based upon a very elaborate and conducive judgment i.e., The State v. Gaman Khan and others PLD 1966 B.J. 30 where it is held that the incorporation of section 265‑C, Cr.P.C. after the amendment in the law for commitment proceedings were intentionally made by the Legislature to make available to the accused; "all available evidence", through copies of statements of "all witnesses" examined by the Police and "all available evidence" which the prosecution have in order to unfold a true case before the Court. If the Legislature had another meaning then it must have made amendment in section 162, Cr.P.C. by recording "all prosecution witnesses"; and there was no need to incorporate section 265‑C, Cr.P.C. by writing the copies of the statements of "all the witnesses" and this section is incorporated under the logic that it is not possible for the accused to cross‑examine a witness effectively unless he knows the facts and circumstances under which the witnesses made the statement before the police and the Police may not cite such person in the calendar of the prosecution witnesses as it was not helpful for the prosecution because it was a truthful witness and the reason and logic behind section 265‑C, Cr.P.C. is to equip the accused with a11, the information before the trial commences to enable him to defend him properly through facilitation of supply of statements of "all the witnesses".

8. The learned A.A.‑G. has placed reliance on Mian Muhammad Abbas Sharif and 2 others v. federation of Pakistan through Secretary, Ministry of Interior and two others 1995 PCr.LJ 1124 (Lah.). A bare perusal‑ of these judgments shows that the supply of the statements under section 265‑C, Cr.P.C. would mean that the accused was entitled to supply copies of "all the witnesses" recorded under sections 161 and 164, Cr.P.C. In Naveed Asif v. The State PLD 1988 SC 99 an observation is given by the Honourable Supreme Court that the entitlement of the accused as a matter of right for the supply of the copies of the statements at the stage of proceedings is of only those statements which are recorded under sections 161 and 164, Cr.P.C. This however, does not mean that the Court has no power to direct the supply of other copies at other stages of the proceedings if the dictates of justice so demand but this would depend upon the facts and circumstances involved in each case and the special provisions of law including those relating to procedure and evidence.

9. After carefully keeping in view the relevant law this Court is of the opinion, the Statements of "all the witnesses" recorded under sections 161 and 164, Cr.P.C., would mean "all the statements" made before the Police and recorded under section 161; Cr.P.C. Because ttie Police has the power to examine the witness under section 161, Cr.P.C. The provisions of section 251, Cr.P.C. cannot be taken to the mean the witnesses only those witnesses which are called for prosecution but it would rather mean the statements of "all the statements" recorded during investigation by the Police because the Police has the power to examine the person equipped with facts and circumstances of the case under section 251, Cr.P.C., read with section 161, Cr.P.C. Therefore, the accused as a matter of right, is entitled to get the copies of the same to confront witnesses with such statements. The failure to provide such copies to the accused would prejudice his case and as the provisions under section 265‑C, Cr.P.C. are vital in nature. Its non‑compliance will vitiate the trial.

10. So far as the Police diary is concerned it is again held in the judgment mentioned above i.e. The State v. Gaman khan and others 1966 B.J. 30 that it is always undesirable to produce the daily diary in the evidence. Even in Subhanuddin v. The State 1976 SCMR 506 it is held that police diary is inadmissible, therefore, the Police daily diary cannot be co‑related with the statements of "all the witnesses" recorded by the Police. The wisdom behind section 265‑C, Cr.P.C. is only to enable the accused to cross‑examine the witness effectively knowing all the facts and circumstances under which that witness made the statements before the Police and those witnesses tray riot necessarily be cited as prosecution witnesses but can otherwise be a truthful witness and the supply of such statements can help the accused to build up his defence in a proper manner.

11. In view of what I have discussed above the instant Criminal Revision Petition is accepted, the order passed by the learned Trial Court dismissing the application under section 265‑C, Cr.P.C. is hereby set aside and the learned Trial Court is directed to provide the accused the copies of the statements of all the witnesses material for the accused to build up his defence. N.H.Q./M‑872/L???????????????????????????????????????????????????????????????????? Revision petition accepted.