SARDAR TARIQ MASOOD, J.---The petitioner filed this criminal revision against the order dated 23- 5-2012 passed by the learned Sessions Judge, Gujrat whereby the petitioner was not allowed to confront the defence witness with his previous statement recorded under section 161, Cr.P.C.
2. Brief facts of the case are that the petitioner is the complainant of case F.I.R. No, 582 dated 22-10- 2009 registered under sections 302/34, P.P.C. At Police Station Saddar Jalalpur Jattan, District Gujrat against respondents Nos. 1 and 2 along with one Muhammad Asghar (since P.O.) for the murder of Muhammad Farooq and Naeem Akhtar. Being dis-satisfied with the investigation conducted by the police, the petitioner filed a private complaint against respondents Nos.1 & 2 and their co-accused (since P.O.).
During the trial, Amjid Ali son of Ghulam Nabi appeared as D.W.3 and deposed regarding the plea of alibi of respondent No,2 namely Adnan alias Kaley Khan. Learned counsel for the complainant during cross examination tried to confront the said D.W. With his statement recorded under section 161, Cr.P.C. But the defence counsel raised objection, upon which, the arguments of both parties were heard by the learned trial court and ultimately vide order dated 23-5-2012, learned counsel for the complainant was not allowed to confront the said witness with his previous statement recorded under section 161, Cr.P.C.
3. Learned counsel for the petitioner .Contends that under Article 140 of Qanun-e-Shahadat Order, 1984, any witness can be cross examined as to his previous statement and he can also be confronted and contradicted with his previous statement; that Qanun-e-Shahadat Order, 1984 had overriding effect upon all the other laws under Article 165 of the Order; that there should be a fair trial and by depriving the complainant to confront the defence witness with his previous statement under section 161, Cr.P.C. Is against the concept of fair trial. Learned counsel relies upon the case of Sarfraz Talib v. Abdul Waheed (2001 PCr.LJ 698).
4. On the other hand, learned counsel for respondents Nos.1 and 2 submits that in the Qanun-e- Shahadat Order, the previous statement has not been defined whereas the use of statement under section 161, Cr.P.C. Is provided in section 162, Cr.P.C.; that the accused can get the copies of statements under section 161, Cr.P.C. As a right under section 265-C, Cr.P.C. But there is no provision in Code of Criminal Procedure; that the Court is legally bound to provide copies of statements under section 161, Cr.P.C. To the complainant. Learned counsel relies upon the cases of Shaukat Ali v. The State (2005 M LD 1470) and The State and others v. Abdul Khaliq and others (PLD 2011 SC 554- F).
5. Heard. Record perused.
6. Admittedly; during investigation, the police recorded the statement of the witness under section 161, Cr.P.C. The said statement is not to be signed by the said person. The use of the said statement is mentioned in section 162, Cr.P.C, which is reproduced as under:-- "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."
' The purpose of the said statement was also mentioned in same section which is as follows:-- "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, 1872. 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."
' Section 162, Cr.P.C. Also made it clear that the said section shall not be deemed to be applied to any statement falling within the provision of section 32 clause (1) of the Evidence Act, 1872 (now Article 46 of Qanun-e-Shahadat Order, 1984).
' From the perusal of section 162, Cr.P.C., it is quite clear that the intention of the legislature in framing section 162, Cr.P.C. In the manner it did, was to protect accused against the use of statements of witnesses made before the police during the investigation, at the trial, because said statement was never signed by the witness. The said section enacted absolute bar against the statement being used for any purpose whatsoever and it enabled the accused to rely upon it for limited purpose of contradicting a witness in the manner as provided by Article 140 of Qanun-e- Shahadat Order, 1984 by drawing his intention to part of the statement intending for contradiction.
The section is quite clear that the statement can be used only by the accused for such limited purpose and it is categorically mentioned that the same will not be used for any other purpose. The legislature used the word "shall" for making absolute bar of using the said statement for any other purpose. Article 140 of Qanune-Shahadat Order, 1984 is controlled LI/ section 162, Cr.P.C. And the prohibition contained in section 162, Cr P.C. Cannot be defeated. The statement under section 161, Cr.P.C. Recorded by the police cannot be utilized as substantive evidence and it can only be utilized under section 162 Cr.P.C. To contradict such witless in the manner provided by section 145 of The Evidence Act, 1872 (now Article 140 of Qanun-e-Shahadat Order, 1984).
' Article 140 of Qanun-e-Shahadat Order 1984, in criminal trial is totally and conclusively governed and regulated by the provision of section 162, Cr.P.C., so for confrontation of contradiction with the statement recorded under section 161, Cr.P.C. Is concerned. However when the statement to be confronted, has been record under section 161, Cr.P.C., then the rider of section 162, Cr.P.C. Shall apply but Article 140 of Qanun-e-Shahadat Order, 1984 being a part of General law of evidence, has its own independent legal efficacy and application upon any other previous statement of the witness, which may have be made B by him in some other judicial, quasi judicial, administrative, extensive proceedings or inquiries or before such of the forums or even privily made through some instrument i.e, agreement or an affidavit, can h. Confronted to him, if relevant, in any criminal case, however, subject to its proof.
' The Evidence Act was promulgated in 1872 and section 145 of the Evidence Act was available in the said Act whereas Code of Criminal Procedure was promulgated in 1898 much after the promulgation of the Evidence Act. The Legislature introduced section 162, Cr.P.C. In the Code of Criminal Procedure in 1898 and in the said section clearly made an exception to section 145 of the Evidence Act and categorically mentioned that the statement of section 161, Cr.P.C. Will be used only by the accused for the purpose of contradicting the prosecution witness. If section 161, Cr.P.C. Is to be considered as a previous statement as mentioned in section 145 of the Evidence Act, then there was no necessity to introduce section 162, Cr.P.C. For the purpose to show the use of statement of section 161, Cr.P.C. So, the overriding effect of Qanun-e-Shahadat Order has no nexus with this section because through this section, legislature has enacted an absolute bar against the statement being used for any other purpose, whatsoever except mentioned in section 162, Cr.P.C.
The judgment relied upon by the learned counsel for the petitioner has no relevancy, with the facts of the present case.
The order dated 23-5-2012 passed by the learned Sessions Judge is well reasoned and there is no illegality or perversity in the said order.
6. Consequently, there is no merit in this criminal revision which is hereby dismissed.