1990 P Cr (PLP)

This petition under section 435 read with section 561‑A of the Criminal Procedure Code has been filed to challenge the legality of the order, dated 26‑5‑1990 of the learned Additional Sessions Judge, whereby he dismissed the application of the petitioner for summoning Muharrir of Police Station Ghazi alongwith daily diary register for 9‑8‑1989 and 10‑8‑1989 in order to confront the investigating Officer P.W.10, with certain relevant entries made therein to test his veracity.

2. The relevant facts are that the petitioner is facing trial for offences under sections 295‑C and 298‑A, P.P.C. in the Court of the learned Additional Sessions Judge, Haripur. During the cross‑examination of the Investigating Officer Mr. Ahmad Nawaz P.W.10, the learned counsel appearing for the petitioner felt the necessity of summoning the Muharrir of Police Station Ghazi alongwith daily diary register in order to confront this Investigating Officer with the entries made in the said register on 9‑8‑1989 and 10‑8‑1989. An application dated 24‑5‑1990 was, therefore, submitted to the learned trial Judge containing the request for summoning the Investigating Officer alongwith the relevant daily diary register for the said purpose which was rejected through the impugned order.

3. The learned counsel Mr. Mushtaq Ali Tahir Kheli arguing for the petitioner submitted that the Investigating Officer all along in his cross -examination remained evasive and ambiguous regarding his answer to the question relating to his departure from and arrival to the police station, the place where he received the report ExhA/1, where did he go and whom did he visit after the receipt of ExhA/1 and the other allied questions and in order to test the credibility of the witness it was requested to the trial Court to send for the daily diary register kept in the police station so that the witness may be confronted with the entries relevant to this case and extracts, there from, be exhibited on record. The learned counsel was of the view that the contents of the said register of 9‑8‑1989 and 10‑8‑1989 are relevant and are either in the handwriting of the witness or have been reduced into writing at his instance and as such can be put to the witness and he can be confronted‑with it during his cross‑examination under Article 140 of the Qanun‑e‑Shahadat, 1984 as the said diary is an official document and the entries made therein are by the public servant in the discharge of his official duty. It was, therefore, submitted that the defence has a right to ask for the production of the register for the purpose indicated above and the prosecution is obliged to arrange for the production of the said daily diary. He also urged that the learned trial Court has rejected his application for this purpose without assigning any reason and has thus erred in law. Reliance was placed on P L D 1981 Pesh.161,1985 P Cr. L J 59 and 1829 and 1988 C L C 2211.

4. Mr. Saeed Akhtar Khan, Advocate engaged as a private counsel by the complainant side seriously contested the correctness of the above contention and defended the impugned order. He argued that under section 540, Cr.P.C. only a person can be summoned as a witness but no document can be sent for in the beginning the learned counsel referred to section 172, Cr.P.C. and pleaded that it is a bar in the way of the defence but ultimately conceded that the daily diary register known as `General Diary' is different from the `Special Diaries' under section 172, Cr.P.C. which are called as case diaries. He then contended that in any case the entries in the daily diary register do not amount to a statement as envisaged under Article 140 of the Oanun‑e‑Shahadat, 1984 and as such the question of confrontation of the witness with these entries would not be legally permissible. He was of the view that the defence can avail of the provision of section 265‑F (6) and (7) and can produce the daily diary register in their defence. The learned AA.‑G. adopted the arguments addressed by Mr. Saeed Akhtar Khan and supported him in his submissions.

5. I considered these arguments in the light of the relevant law and the materials available on record.

6. In order to resolve the controversy it is imperative to determine t0true character of the daily diary register and the provisions of law under which it is prepared and maintained. The learned counsel for the petitioner was of the view that it is an official book/register maintained in the police station and the entries therein are made in the discharge of official duties in terms of section 35 of the Evidence Act and Article 49 of the Oanun‑e‑Shahadat, 1984. The learned counsel for the complainant initially argued that it would fall under Rule 27.24 of the Police Rules 1934 and the prohibition contained under section 172, Cr.P.C. would apply regarding its production and use in Court, The learned Prosecuting Deputy Superintendent of Police Mr. Lutfullah Khan who happened to be present in the Court premises was also asked in presence of the counsel of the parties to assist the Court on this point who submitted that this diary which is known as `General Diary' is maintained under section 44 of the Police Act, 1861. The learned counsel for the parties, thereafter, conceded the legal position and Mr. Saeed Akhtar Khan. Advocate gave up the objection of the bar against the production of the daily diary as contained under section 172, Cr.P.C. The distinction between a special diary usually described as case diary written under section 172 of Criminal Procedure Code and the General Diary prepared and maintained under section 44 of the Police Act; 1861 is thus clear and the bar of section 172, Cr.P.C. would only apply to the former but not to the latter. The general diary which is official register and the entries therein are made in the discharge of official duties if relevant concerning a fact in issue in a Court of law can be used and brought on record under Article 140 of Oanun‑e‑Shahadat, 1984. The next point at issue which was seriously debated was as to whether the entry in the General Diary would amount to a statement as given in section 140 of the Oanun‑e‑Shahadat. The word `statement' has neither been defined in the Evidence Act nor in the Qanun‑e‑Shahadat, therefore, we have to discover its meaning through dictionary or from the use of this word in other parts of the Oanun‑e‑Shahadat to discern the sense in which it has been used there. In the New Edition 1983 of the Chambers 20th Century Dictionary, statement has been given these meanings `the act of stating: that which is stated: a formal account, declaration of facts, a financial record, i.e. one issued regularly by a Bank to a customer, stating his personal balance and detailing debts and credits;. In Legal Thesaurus Regular Edition by William C. Burton, this word 'statement' has been given the following alternative meanings, `account, affidavit, assertion, claim, declaration, detailed account, explanation, exposition, narrative, prepared text and its associated concept have been enumerated as statement of claim, statement of defence, statement of particulars'. I would refer to the various Articles of the Qanun‑e-Shahadat, 1984 in which the word `statement' has been used.

7. Under Article 46(2) the entries or memorandum in books kept in the ordinary course of business or in the discharge of professional duties have been termed as `statement'. Similarly an entry which gives the opinion of any such person as to the existence of any public right or custom etc. would also come under the definition of statement under Article 46(4) of the Oanun‑e‑Shahadat. Under sub‑Article (6) of the said Article the entries relating to the existence of any relationship in any will or deed or any family pedigree or upon tombstone, family portrait are also designated as statement. Similarly in Article 48 of the order, entries in book of Accounts regularly kept in the course of business have also been described a statement. Under Article 50, statement of facts in issue or relevant facts made in published maps or charts generally offered for public sale have also been rendered relevant. Article 51 also lays down that when the Court has to. form an opinion as to the existence of any fact of a public nature, any statement of it, made in the recital contained in any Act of the Central Legislation or any other Legislative Authority in Pakistan etc. would be relevant. Similarly, in terms of Article 52, any statement of law contained in a book purported to be printed or published under the authority of the Government would also be relevant. It is manifest from the said provisions that the word statement does not necessarily imply that it must be communicated to another person or to be made in the presence of some persons but all those entries as given in the above Article of the Qanun‑e‑Shahadat have also been termed as statement and in view of this legal position the meaning of the term `statement' occurring in Article 140 of the Qanun‑e‑Shahadat cannot be limited to the one argued by the learned counsel for the complainant and as ordinarily understood.

8. The argument of Mr. Saeed Akhtar Khan that the defence would have a' chance to avail of section 265‑F(6) and (7) would not hold good as these provisions relate to the stage when the accused enters upon his defence and similarly the application of section 540, Cr.P.C. is also out of question as the witness was not being summoned for re‑examination at that time. This petition is, therefore, allowed, the impugned order of the learned trial Court is set aside and while accepting the application, dated 24‑5‑1990 submitted by the petitioner in the trial Court, it is directed that Muharrir Police Station Ghazi, be summoned alongwith daily diary register of 9‑8‑1989 and 10‑8‑1989 in order to enable the defence counsel to confront the Investigating Officer, P.W.10 Mr. Ahmad Nawaz, with those entries of said dates in the register which are relevant to the present case against the petitioner. P.W.10 Ahmad Nawaz should also be summoned for this purpose. N.H.Q./1047/P Petition accepted.