P L D 1967 Lahore 602 (PLP)

2. In the impugned order, the learned Additional District Magistrate has made a mention of sections 145 and 157 of the Evidence Act, which lay down some rules of evidence. In my opinion these provisions of the Evidence Act can be availed of only if the prescribed procedure does not disallow their use. The procedure for holding an inquiry like one in hand is laid down in the Code of Criminal Procedure and since the Code does not allow the use of statement recorded under section 161, Cr. P. C. for any purpose at any inquiry or trial except for the purpose of contradicting a witness by the accused, the learned Advocates representing different sections of the public at the instant inquiry are not entitled to make use of the said statements inasmuch as they are not representing any accused person. If, as a result of the present inquiry, it transpires that the killing of the persons in the incidents in question amounts to culpable homicide and the persons who perpetrated the homicide are proceeded against as the accused, they shall be entitled to make use of the statements recorded by the police, under section 161, Cr. P. C. as allowed by section 162, Cr. P. C. At the present stage, however, these statements cannot be used by any one for any purpose. It is, therefore, recommended that the order of the learned Additional District Magistrate directing the State to place copies of the statements recorded under section 161, Cr. P. C. on the judicial record and allowing their use by the Advocates while cross‑examining the witness may be set aside. R. S. Sidhwa with Ijaz Ali, O. S. D. and S. Nasir‑ud‑Din, A.‑G. for the State. Malik Aslam Hayat and R. H. Shamsi for the Students. Sardar Shah Bokhari and Raja Muhammad Anwar for the Police. Date of hearing : 1st September 1966. This is a reference made by Ch. Muhammad Ilyas, Addi tional Sessions Judge, Lahore, in connection with an order passed by Ch. Ghulam Hussain, Additional District Magistrate, Lahore dated the 23rd February 1966, whereby he directed that the copies of the statements recorded under section 161, Criminal Procedure Code, in a case registered vide 1‑5rst Informa tion Report No. 19 dated the 13th January 1966, under sections 307 and 332 read with section 149 and section 148 of the Pakistan Penal Code and section 47 of the Defence of Pakistan Rules. of the persons to be produced before him as witnesses, be brought on the judicial record and permitted the lawyers to use those statements while cross‑examining the witnesses. The learned Additional Sessions Judge has recommended that this Court should in the exercise of its revisional jurisdiction set aside the order of the Additional District Magistrate.

2. The facts giving rise to this reference briefly are as follows: On 13th January 1966, the students' community and some political organizations took out processions in the various part of the City of Lahore, to voice their disapproval of the Tashkent Declaration. The police intercepted the processionists, who resorted to violence, and the police opened fire, as a result of which some students and a few men of other callings were killed.

3. The Senior Superintendent of Police, Lahore, recom mended to the District Magistrate, Lahore, to order an enquiry into the cause of death of students and others, and he in turn appointed the Additional District Magistrate, Lahore for this purpose. In pursuance of the order of the District Magistrate, Lahore, the Additional District Magistrate, Lahore, com menced with the enquiry under section 176, Cr. P. C. When he had examined four witnesses of the police, Malik Muhammad Aslam Hayat, Advocate, who represented the students' community, requested for the supply of copies of the statements recorded rider section 161, Cr. P. C. The learned Additional District Magistrate, as indicated above, ordered the supply of the copies of the statements recorded under section 161, Cr. P. C. The State filed a revision petition under sec tions 435/438, Cr. P. C., and the learned Additional Sessions Judge has forwarded the proceedings to this Court under section 438, Cr. P. C., for revision on the following grounds: "The inquiry being conducted by the learned Additional District Magistrate is under section 176, Cr. P. C. Therefore, he has to conduct the inquiry according to the provisions of the Cr. P. C. Section 162, Cr. P. C. enacts that the statements recorded under section 161, Cr. P. C., by the police cannot be used for any purpose at any inquiry or trial except for contradicting the prosecution witnesses by the accused. The provisions of section 162, Cr. P. C. are clearly applicable to the present inquiry, and since there is no accused in this inquiry, none is entitled to make any use of the copies of statements recorded under section 161, Cr. P. C.

2. In the impugned order, the learned Additional District Magistrate has made a mention of sections 145 and 157 of the Evidence Act, which lay down some rules of evidence. In my opinion these provisions of the Evidence Act can be availed of only if the prescribed procedure does not disallow their use. The procedure for holding an inquiry like one in hand is laid down in the Code of Criminal Procedure and since the Code does not allow the use of statement recorded under section 161, Cr. P. C., for any purpose at any inquiry or trial except for the purpose of contradicting a witness by the accused, the learned Advocates representing different sec tions of the public at the instant inquiry are not entitled to make use of the said statements, inasmuch as they are not representing any accused person. If, as a result of the present inquiry, it transpires that the killing of the persons in the incidents in question amounts to culpable homicide and the, persons who perpetrated the homicide are proceeded against as the accused, they shall be entitled to make use of the statements recorded by the police, under section 162, Cr. P. C. At the present stage, however, these statements cannot be used for any purpose."

4. I have heard the learned counsel for either party and they have reiterated what was urged before the learned Additional Sessions Judge. In section 162 of the Code of Criminal Procedure it is laid down that a statement made to the police in the course of an investigation of an offence cannot be used as evidence at any enquiry or trial in respect of that offence, with the proviso that such a statement may be used by the accused to contradict a prosecution witness. But when the statement has not been made in the course of investigating the offence in respect of which a trial is held, neither the main part of sec tion 162 nor the proviso has any application.

5. If it is sought to use the statement at a trial in respect of some offence which was not being investigated when the state ment was made, there is no statutory bar whatsoever to its use. And, of course, the proviso only applies to such trials in which there is a statutory bar.

6. In the instant case, statements were recorded by the investigating Agency relating to the firing incident on the students in which certain students had died. The statements recorded under section 161, Cr. P. C. were in respect of offences com mitted, if any. The enquiry under section 176, Cr. P. C. before the learned Additional District Magistrate relates to. the cause of death of the students and others arising out of the same offences which were previously under investigation at the, time when such statements were recorded. A Magistrate acting under section 176, Cr. P. C. has all the powers in conducting the enquiry, which he would have in holding an enquiry into an offence. Therefore, the prohibition contemplated by section 162 (1), Cr. P. C. applies to the use of statements. As already indicated, in the first proviso to section 162 (1), Cr. P. Code, the previous statement can be used by the accused to contradict a prosecution witness, but since in this enquiry there is no accused and the learned Additional District Magistrate is holding an enquiry into the cause of death, in addition to the investigation held by the police officer (s). Therefore, the statements recorded by the Investigating officer cannot be availed of.

7. Before parting, I may say that a statement made by a i witness to the police in the course of the investigation of a case can never be used to corroborate the witness's evidence: and, if the written record of what a prosecution witness has said to the police is to be used to contradict him under section 162, Cr. P. C., it must be proved and used in accordance with the provisions of section 145 of the Evidence Act, but the police when investigating a case under the preventive sections of the criminal Procedure Code, are not acting under section 162, Criminal Procedure Code, nor the enquiry by a Magistrate under Chapter VIII of the Criminal Procedure Code is an enquiry into an "offence" and, therefore, section 162, Cr. P. Code cannot be used to shut out statements given to the police by persons who are afterwards called as witnesses, as a statement made to the police is as good evidence as a statement to any other person save for certain exceptions to be found in the Evidence Act and in the Code of Criminal Procedure.

8. The result is that the recommendations of the learned Additional Sessions Judge are accepted and the order of the learned Additional District Magistrate is set aside. The learned Magistrate is ordered to proceed as directed herein. K. M. A. Revision accepted.