1998 P Cr (PLP)

Ss. 265-C, 161, 162 & 439

Penal Code (XLV of 1860), S.302/324/34-- Revision

Supply of copies of supplementary statements of prosecution witnesses to accused

Supplementary statements of prosecution witnesses had been separately recorded by the Investigating Officer during investigation and reduced into writing in the case diary

Mere fact of the said supplementary statements being signed or thumb-marked by the prosecution witnesses would not create any bar against their use as provided in S.162, Cr.P.C.

Trial Court had committed gross illegality by misapplying the provisions of S.161, Cr.P.C. by refusing to supply the copies of the supplementary statements of the prosecution witnesses to the accused as required by S.265-C, Cr.P.C.

Order of Trial Court was, consequently, set aside and copies of the aforesaid statements t were directed to be provided to the accused

Revision petition was accepted accordingly. Mukhtar Ahmad v. The State 1986 PCr.LJ 1252; Ghulam Rasool alias Rasoola v. The State 1987 PCr.LJ 455; Nazar Muhammad v. Mushtaq Ahmad and others PLD 1996 Lah. 277 and Mr. Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53 ref. Mehr Muhammad Nawaz Khan for Petitioner. Mushtaq Ahmad Bhatti for A.-G. for the State. Ch. Muhammad Afzal Wahla for the Complainant. Date of hearing: 16th March, 1998. This revision petition is directed against the order, dated 22-1-1998 passed by the learned Additional Sessions Judge, Samundri, whereby, he dismissed the application of the petitioner and his co-accused whereby they had prayed for the, supply of copies of the supplementary statements of Nazir Ali complainant, Abid Ali and Maqbool Ahmad P.Ws. recorded on 27-5-1995 under section 161, Cr.P.C. It was contended in the application that the copies of the aforesaid statements were not distributed to them in pursuance of the provisions contained in section 265-C, Cr.P.C. The learned trial Judge relying on Mukhtar Ahmad v. The State reported as 1986 PCr.LJ 1252 (Lahore) dismissed the application on the ground that the statements of the witnesses recorded in the police diary by the Investigating Officer does not fall within the purview of section 161, Cr.P.C. and as such, the petitioner/accused were not entitled to their copies as prayed.

2. The order of the learned trial Judge was assailed on the ground that the provisions contained in section 161, Cr.P.C. have been misinterpreted by the learned trial Judge in relation to the provisions contained in section 265-C, Cr.P.C. In this regard, it was contended that the pith and substance of the supplementary statements of the P.Ws. aforementioned recorded on 27-5-1995 would show that those were in fact, recorded under section 161, Cr.P.C. The mere fact that those were signed by the P.Ws. would not make any difference as far as their nature was concerned or their use was to be made as provided in section 162, Cr.P.C. Reliance was placed on Ghulam Rasool alias Rasoola v. The State reported as 1987 PCr.LJ 455 (Lahore), Nazar Muhammad v. Mushtaq Ahmad and others reported as PLD 1996 Lab. 277 and Mr. Zulfiqar Ali Bhutto v. The State reported as PLD 1979 SC 53.

3. Learned counsel for the complainant also relied on PLD 1979 SC 53 and 1987 PCr.LJ 455 (Lahore) to show that the statements of the above named P.Ws. did not fall within the ambit of section 161, Cr.P.C. as those were signed by the witnesses and were not separately recorded. It was, therefore, alleged that the petitioner/accused were not entitled to the copies of the aforesaid statement as enjoined by section 265-C, Cr.P.C.

4. I have given my careful attention to the matter in dispute. It has now been well-understood in the light of the principle laid down in PLD 1979 SC 53 that any statement or substance recorded in the case diary during the investigation by the Investigating Officer would come within the purview of section 161, Cr.P.C. and as such, the accused would be entitled to its copy before opening of the trial as required by section 265-C, Cr.P.C. I have gone through the police file and find that unlike the objection taken by the learned counsel for the complainant, the supplementary statements of Nazik Ali, Abid Ali and Maqbool Ahmad were separately recorded on 27-5-1995 by the Investigating Officer during the investigation apart from incorporating them in the case diary of the same date vide Serial No.13 (Abid Ali) No.14 (Maqbool Ahmad) and No.l8 (Nazik Ali). It is, thus, obvious that the objection raised by the learned counsel for the complainant is without any merit that no separate statement of the aforesaid witnesses was recorded. In fact it was separately recorded and also reduced into writing in the relevant case diary. The mere fact that the supplementary statements recorded by the Investigating Officer were signed or thumb-marked by the P.Ws. would not create any bar against their use as provided in section 162, Cr.P.C. As such, the learned trial Judge had, committed gross illegality by misapplying the provisions contained in section 1.61, Cr.P.C. by refusing to supply the copies of the supplementary statements of the witnesses afore named as required by section 265-C, Cr.P.C. The impugned order having been passed illegally is set aside and the revision petition is accepted with the direction that the copies of the supplementary statements of Nazik Ali, Abid Ali and Maqbool Ahmad P.Ws. recorded on 27-5-1995 shall be provided to the accused/petitioner on the next date of hearing.

5. It has been pointed out to me that the Honourable Supreme Court of Pakistan had fixed time limit of three months for disposal of this case. It is, therefore, directed that the trial of the case shall proceed from day to day till its conclusion by an early date. The parties are directed to appear before the learned trial Court on 26-3-1998. The office to transmit a copy of this order to the learned Trial Court well before the aforesaid date. N.H.Q./Z-52/L Revision petition allowed.