1985 P Cr (PLP)

Kh. Sultan Ahmad and Kh. Muhammad Sharif for Petitioner. Aziz Qureshi for the State. In Session Case No.1 of 1981 entiled State through Naz Anjam v. Sohail Azam etc. under section 302/34/109, P.P.C. the accused/ petitioner namely Sohail Azam moved an application dated 2‑6‑1982 under section 540, Cr.P.C. immediately after the prosecution evidence had been recorded for summoning and re‑summoning certain witnesses among whom there was also Mst. Naz; Anjam P.W.7 who was requested to be summoned in order to be crass‑examined on her statement recorded under section 161, Cr.P.C. by the police of the Crimes Branch. The learned Additional Sessions Judge refused to summon the witnesses asked for and recall Mst. Naz Anjam vide his order dated 7‑8‑1982. The petitioner moved another application thereafter on 12‑9‑1982, for summoning the persons mentioned therein including Mst. Naz Anjam as defence witnesses. This application was also rejected with the exception of one witness who was allowed to be summoned as a D.W. As to Mst. Naz Anjam it was observed that since Mst. Naz Anjam had already appeared as a P.W. in the case and the learned counsel was afforded sufficient opportunity to cross‑examine her, therefore, she could not be allowed to be produced as a D.W.

2. The petitioner took an exception to both the orders in this criminal revision which was at the first hearing confined only to the re‑summoning of Mst. Naz Anjam for further cross‑examination as to her statement recorded by the police of Crimes Branch under section 161, Cr.P.C.

3. Now the learned counsel for the petitioner has submitted that the statement of Mst. Naz Anjam was recorded by the Police of Crimes Branch under section 161, Cr.P.C. in addition to her statement recorded during the investigation by the local police at Murree. This particular fact was disclosed during the cross‑examination by Mushtaq Ahmad P.W. Inspector Crimes Branch that he had also recorded the statement of Mst. Naz Anjam under section 161, Cr.P.C. Since the challan was submitted by the Crimes Branch Punjab, Lahore, the statement recorded by the Inspector Crimes Branch was very much part of the investigation, as such that statement in the first instance ought to have been filed alongwith the challan. A copy of that should have been supplied to the petitioner at the time of the commencement of the trial, and, as that had been disclosed during the trial when evidence of the prosecution was being recorded, therefore, it was the duty of the learned Additional Sessions Judge at that time to ask for the statement and when to supply a copy of the same to the accused to enable him to cross‑exmine the witness as to that. The last submission of the learned counsel is that in the circumstances of the case the learned Additional Sessions Judge was not justified in rejecting the application so far as the recalling of Mst. Naz Anjam for further cross‑examination as to her statement under section 161, Cr.P.C. alluded to above was concerned. The very refusal has the effect of causing prejudice and has resulted into miscarriage of justice, In support of the case of the petitioner, the learned counsel has relied upon section 265 (c), Cr.P.C. by which seven days before the commencement of the trial the accused are to be supplied with the copies of all the documents and the papers mentioned therein. The learned counsel has also relied upon The State v. Gaman Khan and others P L D 1966 B J 30, which decision has emphasised the importance of the supply of the copies to the accused of the statement of not only prosecution witnesses but of all the witnesses. Qamar‑uz‑Zaman v. The State 1978 P Cr. L J 10 wherein the importance of section 265‑C, Cr. P. C. has been stressed, Nasrullah v. The State 1980 P Cr. L J 5, wherein the learned Judge has observed that "the object of section 265‑C, Cr. P. C., therefore, appears to be to meet the vacuum created by the abolition of commitment proceedings and to make available to the accused, through copies of statements of all witnesses examined by the police, all the available evidence which the prosecution have for the unfoldment of the true case before the Court. The words "all witnesses" do not particularly mean "prosecution witnesses". The recommendation of the Law Reforms Commission (1967‑70) that copies of "statements of the prosecution witnesses" alone should be supplied to the accused under section 265‑C did find favour with the Government which, in its wisdom retained the liberal expression "statements of all witnesses" previously used in section 251‑A, Cr.P.C.

4. The learned counsel appearing for the State submits that he has no ground to resist the revision petition vis‑a‑vis the submission of the learned counsel for the petitioner since the position taken up by him is sound in law. The submission of the learned counsel for the petitioner appears to be well founded. The statement of Mst. Naz Anjam under section 161, Cr.P.C. recorded by the police of Crimes Branch ought to have been submitted alongwith the challan in the Court and a copy thereof supplied to the petitioner before the commencement of the trial. Since during the trial it came to the knowledge of the learned Additional Sessions Judge that such a statement was recorded by Mushtaq Ahmad, Inspector Crimes Branch so it had become obligatory for him to have ordered the production of the statement for providing a copy to the petitioner under the law and to make available Mst. Naz Anjam for cross‑examination as to that failing in which he denied a valuable entitlement under section 265(c), Cr.P.C. to the petitioner specifically so when he was asked to do. This revision petition is, therefore, accepted. The learned Additional Sessions Judge is directed to order the production of the above‑said statement, provide thereof a copy to the petitioner and recall Mst. Naz Anjam as P.W. to be cross‑examined by the petitioner as to her statement under section 161, Cr. P. C. recorded by Mushtaq Ahmad, Inspector Crimes Branch. M. Y. H.????????????????????????????????????????????????????????????????????????????????????????????? Revision accepted