1977 P Cr (PLP)

The facts giving rise to this revision petition are as follows: On 24‑2‑1974 Ghulam Hassan Khan complainant made a report against Muhammad Amir Khan, Muzaffar Khan, Zafarullah Khan, Muhammad Anwar Khan, and Muhammad Sadiq alleging that Muhammad Amir Khan fired first shot at Saif Ullah deceased hitting his chest and than Zafarullah Khan chased him and fired his gun hitting him on the back. During the investigation, Zafarullah Khan and Muzaffar Khan were found innocent and were not arrested while Muhammad Amir Khan, was found guilty of conspiracy but his presence at the spot was not proceed. Ultimately, Fateh. Khan, Yasin, Atlas Khan and Muhammad Nawaz who are not named in the F. I. R., and Muhammad Amir, Muhammad Sadiq and Muhammad Anwar Khan who are named in the F. I. R., were challaned under sections 148 and 302/149, P. P. C. On 13th March 1974 the Investigating Officer recorded the statement of Ghulam Hassan Khan complainant in the police diary followed by a note that on interrogation Subedar Ghulam Hussain Khan, Dost Muhammad Khan and Abdul Ghaffar P. Ws. had supported this statement. Ghulam Hassan complainant filed a private complaint against the five accused whom he had earlier named in the F. I. R. as the culprits. When Subedar Ghulam Hussain Khan P. W. was under cross‑examination in the complaint case, the learned counsel for the accused wanted to confront him with the statement dated 13th March 1974, but the learned trial Judge did not allow him to do so on the ground that the note of the Investigating Officer that Subedar Ghulam Hussain, Dost Muhammad Khan and Abdul. Ghaffar had supported the statement of the complainant, could not be con sidered as a statement and was outside the purview of section 162 of the Code of Criminal Procedure. Feeling dissatisfied with this order, Muzaffar Khan one of the accused in the complaint case has come up in revision to question the propriety thereof praying that the trial Court be directed to supply a copy of the joint statement which is being treated by the trial Court as a 'note' and the accused be permitted to confront the witness with the same.

2. The learned counsel for the petitioner contends that the note of the Investigating Officer that Subedar Ghulam Hussain Khan, Dost. Muhammad Khan and Abdul Ghaffar had supported the statement of the complainant (dated 13‑3‑1974), was not a mere note but a statement owning the contents of the statement of the complainant, therefore, the aforesaid statement can be treated as a joint statement of Ghulam Hassan Khan complainant, Subedar Ghulam Hussain Khan, Dost Muhammad Khan and Abdul Ghaffar and it falls within the purview of section 162 of the Code of Criminal Procedure. The learned counsel for the State is not in a position to controvert this contention. The learned counsel for the complainant, however, states that the aforesaid note of the Investigating Officer cannot be treated as a statement and if it is conceded that it is a statement, even then it being a joint statement cannot be used for contradicting the witness. He further states that a private complaint is outside the scope of first Proviso to section 162, Cr. P. C. and a witness produced by the complainant in a private complaint cannot be confronted with a statement made by him during the investigation.

3. After giving my careful consideration to the arguments addressed by the learned counsel for the parties, I feel inclined to the view that the disputed statement falls within the purview of section 162 of the Code of Criminal Procedure. When a person is examined by the police during the course of an investigation under Chapter XIV of the Code of Criminal Procedure and is subsequently called as a witness for the prosecution, the accused has the right, irrespective of the fact that the case is tried on a private complaint or a police challan, to ask the Court for a copy of his statement so that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by section 145 of the Evidence Act. In Bakhtawarsingh v. The State (A I R 1951 Raj. 145) it was held that in such a case it is immaterial whether the case was challaned by the police or is enquired into by the Court on complaint and the important fact which makes the applicability of section 162 of the Code is that the statement was recorded by the police officer in the course of an investigation under Chap. XIV of the Code. The police file shows that Subedar Ghulam Hussain, Dost Muhammad Khan and Abdul Ghaffar made a statement before the Investigating Officer owning the contents of the statement of the complainant dated 13th March 1974, therefore, that statement can be treated as a joint statement of the complainant and aforementioned three P. Ws. Such a statement falls within the purview of section 162, Cr. P. C. and the accused has a right to a copy thereof and can use it in the manner provided by proviso 1 of that section. In this connection reliance can be placed on Malik Bostan Khan v. Crown (P L D 1955 Lah. 59). In this case the facts were that the Investigat ing Officer had recorded a statement jointly of five persons and the accused had asked for a copy of statement of one of those persons when he was under cross‑examination, but it was refused by the Court. On revision, it was held that the accused cannot be deprived of the benefit that he may derive from confronting the witness with his previous statement simply because the other witnesses had made a similar statement and a direction was issued that the accused be furnished with a copy of the said statement. In the circumstances, I am of the view that the statement of Ghulam Hassan Khan complainant ca' also be treated as the statement of Subedar Ghulam Hussain Khan, Dos Muhammad Khan and Abdul Ghaffar because they owned the contents thereof and the accused are entitled to the copies of the statements of Ghulam Hassan Khan complainant and the other three eye‑witnesses and can use them as contemplated by section 162 of the Code of Criminal Procedure. (A I R 1927 Pat. 325).

4. For the foregoing reasons, I accept this revision and direct the learned trial Judge to supply a copy of the disputed statement note to the accused and allow them to use the joint statement in the manner provided by Proviso 1, section 162, Cr. P. C. subject to the rules of admissibility and relevancy under the Evidence Act. Revision allowed.