EJAZ AFZAL KHAN, J.--This petition for leave to appeal has arisen out of the order dated 2-11-2012 of the Lahore High Court, Rawalpindi Bench whereby the learned Judge in its chambers dismissed the revision petition filed by the petitioner.
2. The main contention of the learned counsel for the petitioner was that a witness who has been declared hostile can well be cross-examined but he cannot be confronted with his previous statement recorded under section 161 of the Cr.P.C. And that the learned trial Judge by permitting the Deputy District Prosecutor to confront him with his previous statement has acted against law.
Learned counsel to support his contention placed reliance on the cases of "Shaukat Ali. v. The State"
(2005 M LD 1470), "Sona Mia and another v. The State" (PLD 1959 Dacca 400), "Anis Mondal v. The State" (PLD 1959 Dacca 36), "Fazlul Haque v. The State" (PLD 1959 Dacca 931). The learned counsel next contended that if the prosecution is allowed to confront a witness with his previous statement recorded under section 161 of the Cr.P.C. During the course of cross-examination after being declared hostile it would amount to using such statement for corroboration rather than contradiction which is not in conformity with the intention of the legislature. The learned counsel by concluding his arguments contended that even the learned Judge of the High Court hearing the petition under section 439 of the Cr.P.C. Failed to construe section 162 of the Cr.P.C. In its proper perspective.
3. As against that the learned counsel appearing on behalf of the complainant contended that if Article 153(3) of Qanun-e-Shahadat is read carefully, it does not prohibit confrontation with a previous statement of a witness recorded under section 161, Cr.P.C. This right, the learned counsel added, is also recognized by Article 140 of Qanun-e-Shahadat. The learned counsel to support his contention placed reliance on the case of "Notiar Abdullah Taiyab v. The Kutch Government" (AIR
(37) 1950 Kutch 87). The learned Additional Prosecutor General, Punjab contended that if section 162 of the Cr.P.C. Is read closely and carefully, it does not permit the prosecution to use a previous statement of a witness recorded under section 161 of the Cr.P.C. For confronting him, even if he is declared hostile and cross-examined with the permission of the Court. It was, in view of this essential aspect, he added, that the legislature in India inserted the words with the permission of the Court by the prosecution" in the proviso to 162(1) of the Cr.P.C. Through Amending Act, XXVI of 1955."
4. We have gone through the entire record carefully and considered the submissions of the learned counsel for the parties.
5. Before we appreciate the arguments advanced by the learned counsel for the parties, it is worthwhile to refer Section 162 of the Cr.P.C. Which reads as under:-- "162. Statements to police not to be signed, use of such statements in evidence.---
(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced into writing be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise or any part of such statement or record, be used for any purpose, (save as hereinafter provided), at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: ' Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid the Court shall on the request of the accused, refer to such writing and direct that the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by section 145 of the Evidence Act, 1822. When any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination: ' Provided further, that, if the Court is of opinion that any part of any such statement is not relevant to the subject matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interests, it shall record such opinion (but not the reasons therefore) and shall exclude such part from the copy of the statement furnished to the accused.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of Section 32, clause (1), of the Evidence Act, 1872 or to affect the provisions of section 27 of that Act."
6. The above quoted provision clearly provides that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing, the Court shall on the request of the accused refer to such writing and direct that the accused.Be furnished a copy thereof in order that any part of such statement if duly proved may be used to contradict such witness in the manner provided by Article 140 of the Qanun-e-Shahadat. It does not provide anywhere that any part of such statement if duly proved could also be used by the prosecution to contradict such witness. Articles 140 and 151 of Qanun-eShahadat, no doubt permit cross examination as to previous statement in writing but these being general in nature cannot be extended to cover a statement recorded under section 161 Cr.P.C. Nor can they be taken to override the provision of section 162 of Cr.P.C. In the absence of a non obstante clause. In the case of "Sono Mia and another v. The State" (PLD 1959 Dacca 400), the Dacca High Court held as under:- "This is an obviously wrong interpretation of the law, for, statement made by a witness to the police under section 161, Criminal Procedure Code, can never be used by the prosecution for corroborating or for explaining any part of that witnesses evidence in Court. The= statement is made available to the defence only for the purpose of contradicting the witness and testing the veracity of that witness and never for any other purpose. Here also the learned Judge has grievously mis-directed the jury and on this ground also the charge is vitiated.
' In the case of "Anis Mondal v. The State" (PLD 1959 Dacca 36), the same High Court held as under:- "Under the proviso to section 162, Cr.P.C., as amended by the Amendment Act XVIII of 1923, statement made by any person to a police-officer in the course of investigation under Chapter XIV shall not be used for any purpose except to contradict a witness at the request of the accused in the manner provided in the first proviso to the section. No statement made by any person to the police-officer in the course of a case can be admitted in evidence except for the limited purpose mentioned in section 162 and that too, at the instance of the accused. The prosecution has no right whatsoever to prove the statement of the witness or to use it to contradict its own witnesses or the witnesses produced by the defence. It is, therefore, clear that the statement made by a witness' to the police can be used only by the accused, and that also only to contradict the witness. It cannot be used by the prosecution to corroborate the statements of its own witnesses."
' In the case of "Fazlul Hague v. The State" (PLD 1959 Dacca 931), the Dacca High Court reaffirmed the same view in the words as under:-- "My attention, is drawn to the provisions of section 162 of the Code of Criminal Procedure which make such statements recorded in the course of an investigation by a police-officer available only for the limited purpose of contradicting a prosecution witness at the request of the accused and of no one else. In the present case, the accused did not seek to contradict this witness by his 161 statement but it was the prosecution which attempted to do so. This the prosecution could not do in view of the provisions of section 162 and, therefore, the contends of that statement were inadmissible and could not be used for the purpose they have been used in the present case by the learned Special Judge. The result of the exclusion of such inadmissible material, therefore, is that the testimony of this witness cannot be contradicted by the contents of that statement purported to have been recorded under section 161 of the Code of the Criminal Procedure."
' In the case of "Shaukat Ali v. The State" (2005 M LD 1470), the Lahore High Court while dealing with a similar proposition and after examining a string of judgments held as under:-- "5. A bare perusal of section 162 of the Criminal Procedure Code makes it manifest that the intention of the legislature, in framing section 162 in the manner it did, was to protect the accused against the use of the statements of witnesses, made before the police during the investigation, at the trial, presumably on the assumption that the said statements were not made in circumstances inspiring confidence. Both, the section and the proviso, intended to serve primarily the same purpose i.e,, interest of the accused. The section was conceived in an attempt to find a via media, namely, while it enacts absolute bar against the statement being used for any purpose whatsoever and it enables the accused to rely upon it for limited purpose of contradicting a witness in the manner as provided by Article 140 of the Qanun-e-Shahadat Order by drawing his attention to parts of the statement intended for contradictions. It cannot be used for corroboration of a prosecution or a defence witness or even a Court witness, nor can it be used for contradicting a defence or a Court witness by prosecution. Article 140 of Qanun-e-Shahadat Order is controlled by section 162, Cr. P. C. And the prohibition contained in section 162, Cr.P.C. Cannot be defeated."
' In the case of "Dwarka Singh and another v. Emperor" (AIR (34) 1947 Patna 107), the High Court of Patna after carefully examining the words used in the first provision to 162 of the Cr.P.C. Held as under:- "9, There is another circumstance which makes me hesitate to accept what is practically the sole evidence of Baiju, without corroboration. It is this. Baiju states that he told the names of the dacoits he had identified to five villagers, whom he named, who had come up directly after the departure of the dacoits. The prosecution made no attempt to examine four of these. The fifth, Misri Pasi (P.
W. 6) was examined, but he said "Baiju did not tell me the names of the dacoits identified by him".
He was allowed to be declared hostile and cross-examined by the Assistant Public Prosecutor. But here again there was a defect in the procedure of the learned Judge. He allowed it to be put to the witness in cross- examination by the Crown that he had stated before the Sub-Inspector that Baiju had told him that he had identified Dwarka and others. Under 5.162, Criminal P.C., the defence is entitled to contradict a witness called for the prosecution by reference to his statements before the police,. But the prosecution is not. Section 162 lays down in the most positive manner that, apart from this privilege extended to the accused, the statements to the police shall not be used for any purpose at the trial. In my opinion, Dwarka Singh must get the benefit of the doubt, and must be acquitted".
' The judgment rendered in the case of "Notiar Abdullah Taiyab v. The Kutch Government" (supra) cited by the learned counsel for the complainant when read carefully also endorses the same view in the words reading as under:-- "5. The learned Magistrate convicted the accused both for the offence of theft and in the alternative for dishonestly receiving and disposing of the stolen property. He believed the evidence of Umar and Labhshanker. I may remark that having once come to the conclusion that the accused was a direct participator in the theft, there was no question of his receiving the property. The two offences are distinct and a person proved to have committed the theft cannot be convicted for receiving the property".
7. The view expressed in the judgments cited above appears to be correct, as it is conforms to the words used in the proviso to section 162 of the Cr.P.C. It was in view of this essential aspect that the legislature in India amended the proviso to section 162 of the Cr.P.C. Through Amending Act, XXVI of 1955. It is worthwhile to refer to the proviso to section 162 of the Cr.P.C. Of India as it stands after amendment and thus runs as below :-- "Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination."
' The very insertion of the words "with the permission of the Court by the prosecution" in the proviso quoted above through Amending Act mentioned above shows that the framer of the original, code never intended that a previous statement of a witness recorded under section 161 of the Cr.P.C, could be used by the prosecution to contradict him, after being declared hostile.
8. The argument that if the prosecution is allowed to confront a witness with his previous statement recorded under section 161, Cr.P.C. During the course of cross-examination after being declared hostile, it would amount to using it for corroboration rather than contradiction would be just academic when we are quite clear in our mind that it cannot be used by the prosecution for the purpose of contradicting the witness. We, therefore, hold that the prosecution cannot be permitted to confront .a witness with his previous statement recorded under A section 161 of the Cr.P.C. For the purpose of contradicting him even after being declared hostile.
9. Having thus considered, we convert this petition into appeal, allow it, set aside the impugned orders permitting the prosecution to confront the witness with his previous statement recorded under section 161, Cr.P.C.