2008 PLP 1092 (YLR)

None is present on behalf of respondent No.2. He was served and on 12-9-2007 Nazir Hussain, S.-I., was also directed to bring him. On 19-9-2007 one Haji Pianda was present on behalf of respondent No.2. He stated that a counsel had been engaged by respondent No.2, but the counsel was not available on the said day as he had gone to Sheikhupura. The case was adjourned for next day (i.e. today) and said person was directed to make his counsel available. Today, neither the learned counsel for respondent No.2 nor any other person on his behalf is present. The State is represented by- Mr. Tahir Mehmood Gondal, A.A.-G. So we proceed to decide this case.

2. Through this constitutional petition the petitioner has impugned the order of Special Judge, Anti-Terrorism Court III, Lahore, dated 5-6-2007. The learned counsel in support of this petition submits that the application submitted by the complainant on 2-9-2006 could not have been exhibited as done by the learned Trial Court. He submitted that the F.I.R. was lodged by the complainant against unknown persons and thereafter an application to the Investigating Officer was made, which fact is mentioned in Police Diary, dated 2-9-2006. It is submitted by the learned counsel that the learned Trial Court in exhibiting the said application as Exh.P.G. has committed an error in law as the application can only be a statement under section 161, Cr.P.C. and a statement under accused this section can only be confronted by the and not by the prosecution as required under section 162, Cr.P.C. The learned counsel has placed reliance on the cases Falak Sher alias Sheru v. The State (2003 SCMR 1419), Anees ur Rehman and another v. The State (PLD 2002 Lahore 110) and Khalid Javed and another v. The State (2003 SCMR 1419).

3. The learned A.A.-G submits that the application submitted by the complainant to the Investigating Officer can be treated a statement under section 161, Cr.P.C. which has already been recorded in the case Diary and could not have been exhibited.

4. We have heard the learned counsel for parties and gone through the documents annexed with this petition. Facts of the case, in brief, are that respondent No.2, Muhammad Ali, lodged an F.I.R. on 14-7-2006 about the abduction of his son for ransom, which took place on 10-7-2006. Later on he submitted an application which is at page. 12 of this petition stating therein that how he had come to know about the accused persons and how they abducted his son. He has been examined by the Trial Court as P.W.2. While making statement of his own he also submitted before the Trial Court the said application submitted by him to the Investigating Officer while giving the details of occurrence and the Trial Court exhibited the same as. Exh. PG. The learned Defence Counsel raised objection as to exhibiting of the application and the learned Trial Court passed the impugned order.

5. After hearing the learned counsel for parties and going through the relevant provisions of law we find that the application submitted by the complainant can be a statement under section 161, Cr.P.C. We are of the considered view that after registration of the F.I.R. any information laid before the I.O. can be treated a statement under section 161, Cr.P.C. and that can be used for the purpose of contradiction by the accused as mentioned in section 162, Cr.P.C. The said application could not have been exhibited by the learned Trial Court as Exh.P.G. However, the complainant is at liberty to make statement before the Trial Court as regards to contents of this application and his other statement before the Investigating Officer under section 161, Cr.P.C. The learned Trial Court while exhibiting the said application has made observation that under the special circumstances of this case the application could have been brought on record. The learned Trial Court has failed to quote any law under which it under special circumstances of the case could exhibit the application. We while relying upon the cases mentioned above are of the view that the Trial Court should not have exhibited the application and should follow the provisions of law. In this view of the matter the impugned order regarding exhibition of the application is set aside. The writ petition stands disposed of accordingly. H.B.T./N-111/L Order accordingly.