' This is a petition under section 439, Cr. P. C. By Nasrullah, petitioner against the order of an Additional Sessions Judge, Gujranwala, dated 18th April, 1979, refusing to supply copies of statements recorded under sections 161, 164 and 172, Cr. P. C. Of persons who have appeared in defense and not been named in the challah as prosecution witnesses.
2. The brief facts of the case are that the petitioner and three others are facing trial as accused persons in a case under section 302/34, P.P.C. They requested for the supply of copies of statements of those persons whose names did not appear in the challah filed in Court as prosecution witnesses, but who had appeared in defense of the three co-accused on the basis of which their names had been placed in column No, 2.
3. The learned counsel for the petitioner has submitted that the accused are entitled to the copies of statements of not only the prosecution witnesses whose names appear in the challan, but copies of the statements of the defense witnesses also which have been recorded under sections 161 and 164, Cr. P. C. It is further submitted that the statements of defense witnesses recorded under section 172; Cr. P. C. Have also to be supplied to the petitioner. Reliance has been placed on The State v. Garnan Khan and others (1), Hakim All v. The State (2), Qamar-ul-Zarnan v. The State (3) and Z. A. Bhutto v. The State (4).
4. The learned Assistant Advocate-General, appearing for the State, who strongly opposes the petition, has submitted that only statements of witnesses whose names appear in the challan can be supplied under section 265-C, Cr. P. C. And not of persons whose names are not mentioned in the challan as prosecution witnesses. The learned Assistant Advocate-General has placed reliance on The State v. Z.
4. Bhutto (5).
5. I have given my anxious consideration to this case. In the first case cited, namely, The State v.
Garhan Khan and others it was held that an accused, under section 251-A, Cr. P. C. Was entitled to get copies of "statements of all witnesses" which not only included prosecution witnesses but of all witnesses whose statements had been recorded by the Police even though their names were not mentioned in the challan. This view was taken, despite the report of the Law Commission which had recommended that only copies of "statements of material witnesses" should be supplied, but in view of the unambiguous language of section 251-A, Cr. P. C. Which was considered wider in amplitude and as giving the accused the right to know in advance the nature of the prosecution case and also because of the amendments to sections 256 and 257, Cr. P, C., which withdrew the right of the accused to recall thrice the prosecution witnesses in a warrant case for cross- examination, this view was taken. It was further held in this case that the copies of statements recorded by the Police included statements of all witnesses which were recorded during the course of investigation, irrespective of the fact whether they were examined by the Investigating Officer or produced by the accused or they appeared themselves. Still further, it was held that section 251-A, Cr. P. C. Applied not only to warrant cases, but to all other cases (including summons cases and sessions trials) excepting cases tried summarily. In 1972, major amendments were made in the Criminal Procedure Code. Inter alia Chapter XVIII (which related to commitment proceedings), Chapter XXI (which related to warrant cases and incorporated section 251-A, Cr. P. C.) and Chapter XXIII (which related to trials before the High Court and Courts of Sessions) were omitted from the Code and amongst various additions a n: w Chapter XXI1-A (which related to trials before the High Courts and Courts of Sessions and incorporated section 256-C) was added to it, by the Law Reforms Ordinance, 1972. The same question in regard to the newly-added section 265-C, Cr. P. C.
Came up for discussion in Qatnar-ul-Zan2an v. The State. It was also held in this case that an accused was entitled under section 265-C, Cr. P. C. Not only to statements of those prosecution witnesses whose
(1) PLD 1966 B J 30 (2) 1972 P Cr. L J 644
(3) 1978 P Cr. L J 10 (4) PLD 1979 SC 53
(5) PLD 1978 Lab. 253 ' names appeared in the challah, but to statements of all witnesses recorded under sections 161 and 164, Cr. P. C. In 1978 and 1979 section 265-C, Cr. P. C. Came up for interpretation in this Court and the Supreme Court in Zulfiqar Ali Bhutto's case, but in a different context. In the High Court the question raised was whether the Magistrate who took cognizance of the case and sent it for trial to the Court of Session, had authority to take cognizance of the case, as only an incomplete challah had been presented to him by them. In the Supreme Court, the question for consideration was whether copies of the statements of two approvers and a prosecution witness recorded by the Police were statements under section 161, Cr. P. C. And, if so, whether they should have been supplied to the accused under section 265-C, Cr. P. C. And, if not, what was its effect. Both the High Court and the Supreme Court whilst dealing with these specific objections which were raised before them, referred to section 265-C, Cr. P. C. In the course of their discussion, but they did not specifically deal with the question whether copies of statements to be supplied under section 265- C, Cr. P. C. Meant only statements of prosecution witnesses named in the calendar (challan), or statements of all witnesses whether so named or not, but whose statements had been either recorded under section 161 or 164, Cr. P. C. Or had been recorded under section 172, Cr. P. C. In the Police diary but in substance and essence were statements of such persons and not merely notes of circumstances ascertained through investigation. The passages cited by the learned counsel for the petitioner and the State are, therefore, not a proper guide for the determination of the question before me. However, the Supreme Court has observed in its appellate decision that the provisions of section 265-C, Cr. P. C. Should be liberally constructed in the spirit in which it has been enacted and to this extent the obiter, in that it relates to a principle of construction of this section, is binding on this Court,
6. This Court in Gaman Khan's case held the view that the words "statements of witnesses" in section 251-A, Cr. P. C. Were wide enough to include all witnesses and not only prosecution witnesses cited in the challan. This view has prevailed even after the omission of the said section and the addition of the new section 265-C, Cr. P. C., which also uses the same words "statements of all witnesses recorded", as is obvious from the decision of this Court in Qamar-ul-Zaman's case.
Though the latter case does not thoroughly discuss the effect of the changes brought about by the Law Reforms Ordinance, 1972, the basis of the view is not far to seek and will be discussed in a subsequent paragraph. Initially when section 251-A was added to the Code, the object was to provide to the accused seven days in advance of the commencement of the trial copies of statements of all witnesses whose statements had been recorded by the Police. The view of the Law Commission then was that copies of statements of "material witnesses" should be supplied ; it did not state statements of "prosecution witnesses" only, which it could have done. Who would have been material witnesses, in the background of certain witnesses picked up and cited in the challan as prosecution witnesses and others left out as unnecessary, is difficult to foresee, but it would have created problems for the Judge, if not opened up a vista of divergent view as regards that new expression. The object of the words "all witnesses" in section 25I-A, Cr. P. C. Was to do away with any narrow interpretation and to supply to the accused statements of all witnesses examined by the Police so as to provide advance information to the accused of the prosecution's full case, irrespective of the fact whether all such statements would be useful to the accused for contradicting them in the eventuality that they appeared to give evidence.
7. With the amendments brought about by the Law Reforms Ordinance, 1972, the position changed materially. As mentioned in para. 5 above, amongst the major changes made some important chapters, were omitted and new chapters added to the Code of Criminal Procedure. The view of this Court in Qamar-ul-Zaman's case is again being challenged by the learned Assistant Advocate-General in view of the observation made by this Court in para 346 of Zulfiqar All Bhutto's case. It is also being submitted that Qamar-u1 Zarnan's case does not discuss the effect of the changes in the law brought about by the Law Reforms Ordinance, 1972, which militates against so liberal a view being given to section 265-C, Cr. P. C. I am, therefore, called upon to differ from the Single Bench view in Qamar-ul-Zaman's case.
8. In interpreting the scope and range of section 265-C, Cr. P. C. Certain matters have to be borne in mind. The first is the important principle that governs all criminal trials, namely that the State is expected to produce without fear or favor, malice or ulterior motive 4 of any kind, all available evidence which has a material bearing on the case, with the object of placing the true facts before the Court. The scope of this guarantee of good faith is the bed rock of true justice, but the existing values, as they are, leave much to be desired. In a case as the present, where Zafrullah, Ali Bahadur and Muhammad Inayat co-accused have been found innocent during investigation and Nasrullah, the present petitioner, has been found guilty and where all four persons have been sent up for trial, can it be said for certain 'that the State will produce all available evidence with the object of unfolding only the true facts before the Court, or will it produce only a fraction of the available evidence to present a partial picture. If the former, it must produce all witnesses examined on behalf of the prose caution and the defense and, if the latter, only those who will support the story found during investigation as not wholly true. The need, therefore, of delivering to the accused-and specially to the three co-accused who have been found innocent during investigation of statements of all persons examined by the Police, becomes apparent. Take another fact of the present case. Zafrullah, Ali Bahadur and Muhammad Inayat co-accused, whom the Police have found innocent, may produce in evidence persons who have during investigation deposed not only to facts in their favour but facts against Nasrullah petitioner, whom the Police have found guilty. If sections 162 and 265-C, Cr. P. C. Only apply to prosecution witnesses, Nasrullah petitioner will be under a disability, for if such defense witnesses are produced by the said three co-accused to depose to their innocence and to facts showing the commission of the crime by him then he will neither have an opportunity to know beforehand the case he has to meet, nor will he be able to cross-examine them. If the commitment proceedings had been in force, Nasrullah may have come to know or received some forewarning of their existence or their case through prosecution witnesses cross-examined by him or through the list of defense witnesses supplied by his co- accused. But with the commitment proceedings abolished, the necessity for the delivery, of copies of statements of all witnesses examined by the police, assumes paramount importance, for without these copies, Nasrullah may not come to know of their existence or the case which he may have to meet. 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 :465-C did not 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. The word "witnesses" in clause (c) of subsection (1) of section 265-C is used in its normal and general sense, meaning persons who have c knowledge of facts relevant to the case and whose depositions have been recorded by the police during investigation. Para. 346 of Zulfiqar All Bhutto's case does not specifically deal with the question raised before me. The passage cited, therefore, cannot be regarded as possessing absolute authority, so as to be binding on me. In these circumstances copies of statements of all witnesses whether supporting the prosecution case or the defence plea, have to be supplied to the accused. Whether all such statements supplied under section 265-C will be useful for the purposes of contradicting such witnesses if they appear in Court, will depend upon the provisions of the first proviso to sub-section
(1) of section 162, Cr. P. C., for this proviso refers to witnesses "called for the prosecution". However, in view of what is stated above and the observation of the Supreme Court in Zulfiqar Ali Bhutto's case (appellate decision) that section 265-C should be liberally construed, I hold that the petitioner and his co-accused in the instant case were entitled to copies of statements of all witnesses, whether supporting the prosecution case or the defence plea and whether named in the challan or not, provided such statements were recorded by the Police during investigation separately under section 161 or 164, Cr. P. C. Or in the Police diary under section 172, Cr. P. C. If in substance and essence they were statements of the persons D so examined and provided further that where such copies of statements related to witnesses supporting the prosecution case, the Court was of opinion that no part of such statements were hit by any of the disabilities mentioned in the second proviso' to subsection (1) of section 162, Cr. P. C. Since the said second proviso does not apply to wit nesses called for the defence, no part of their statements can be withheld.
9. A perusal of the impugned order shows that the learned Additional Sessions Judge held that the statements, the copies of which were sought by the petitioner and his co-accused, were not in essence statements under sections 161 and 164, Cr. P. C. But proceedings incorporated in the Police diary which were statements of the circumstances ascertained through investigation and which being protected within the meaning of section 172, Cr. P. C. Could not be delivered to the accused. I have gone through the statements of Mst. Safia, Ali Muhammad, Mst. Rehmat Bibi,. Rahmat Ali and Ghulam Nabi in the Police diary and find that though they are recorded in the third person, in substance and essence they are statements of these witnesses. They are basically statements under section 161, Cr. P. C. In Zulfiqar Ali Bhutto's case the Supreme Court whilst examining the statements of the two approvers recorded in the Police diary found that they "were in essence and substance statements falling under section 161 (3), Cr. P. C. "as they contained "a detailed narrative of the events touching the murder case" and it was, therefore, held that they ought to have been supplied to the accused under section 265-C, Cr. P. C. In the instant case, the statements of these five persons recorded in the Police diary also contain a detailed account of facts showing the innocence of the three co-accused and copies thereof E should be delivered to the petitioner and his co-accused under section 265-C, Cr. P. C. The order of the learned Additional Sessions Judge being illegal, therefore, deserves to be set aside.
10. In view of the above, the petition is accepted and the order of the learned trial Judge dated 18th April, 1979 is set aside. The learned d trial Judge will deliver copies of the statements of Mst. Safia and others to the petitioner and his co-accused at least seven days before the commencement of the trial.
11. Before concluding,' would like to mention that the question whether a defense witness produced by one accused, when giving evidence against another co-accused, can be contradicted by his previous statement made during the course of investigation, is a matter which requires fresh examination. Such a witness is not strictly a "witness called for the prosecution", within the meaning of the first proviso to subsection (1) of section 162, Cr. P. C., but since he deposes to facts like any other prosecution witness, on the rule of "liberal interpretation" can he be treated as a "witness called for the prosecution", is a matter which requires to be examined in a new light. if an accused, as an approver, when giving evidence against his co-accused, can be contradicted by his previous statement made during the course of investigation, a defense witness giving evidence against an accused is in no superior position to claim any privilege. Since the said matter is not before me, but one likely to arise in the present case during the trial, I leave the question open for determination by the learned trial Judge, without trenching upon the jurisdiction which is his, to decide the matter.