' QAZI MUHAMMAD AMIN AHMED, J. --- One Mithey Khan was gunned down at 8:00 a.m. On 11.8.2008 within the area of Mauza Jaliana of Police Station Manga Mandi; Amir, Mahboob and Seeman Bibi sustained injuries during the occurrence; seven persons were accused in the crime report for the commission of homicide and murderous assault on the PWs, of them Khalil Ahmad, Rasheed Ahmad and Hafiz Habib Ahmad are presently facing trial before a learned Additional Sessions Judge at Lahore, remaining accused are still away from the law.
' On conclusion of prosecution evidence, Hafiz Habib Ahmad and Khalil Ahmad, accused opted to be their own witnesses in disproof of charge against them within the contemplation of sub-section
(2) of Section 340, Cr.P.C.; they are arrayed as respondents herein. Hafiz Habib Ahrnad was examined as DW-2 on 21.2.2014 and was even cross-examined by the learned DDPP assisted by the learned counsel for complainant; his examination concluded smoothly; however, controversy arose on 24.2.2015 when Khalil Ahmad, respondent entered witness-box as DW-3 to offer his testimony to contest the charge against him when at the very outset of his cross-examination he was asked about his first version before the Investigating Officer, which according to him was recorded on 1.2.8.2008. It was at this point of time when the learned counsel for the complainant asked for a copy of first version of accused, though it is not mentioned in his request, nonetheless, apparently for the purpose of confronting the respondent with his first version purportedly recorded by the Investigating Officer during the course of investigation; defence objected to the request and the proceedings were adjourned and finally on 6.3.2015, the learned Additional Sessions Judge, Lahore declined the request to provide copy of first version to confront Khalil Ahmad, respondent with his previous statement, wires whereof are challenged through this petition.
2. Learned counsel for the petitioner while referring to Surah AI-Baqrah Chapter 21 contends that after promulgation of the Qisas & Diyat Ordinance, 1990 it has become incumbent upon a Trial Court dealing with the cases of homicide and hurt to seek guidance from the injunctions of Islam as laid down in the Holy Quran & Sunnah and to canvass this point the learned counsel has referred to the provisions of Section 338-F, P.P.C. According to the learned counsel, Khalil Ahmad, respondent by offering himself a witness under oath has waived all the immunities, defences and privileges, and thus, stands exposed to be treated as a witness simplicitor, who can duly be confronted with his previous statement without a demur as after waiver of his immunities, he cannot escape ensuing consequences of Article 140 of Qanun-e-Shahadat Order, 1984 which according to the learned counsel in view of Article 165 of the Order ibid shall have overriding effects. The bottom line of the arguments advanced by the learned counsel for the petitioner is that in a case of homicide it is a right of the Walls to demand Qisas and respondents Nos. 2 and 3 by offering themselves as witnesses have provided an opportunity to the Walls to extract standard of proof requisite to infliction of Qisas. In order to qualify his point of view, the learned counsel has placed reliance on the cases reported as Sarfraz Talib v. Abdul Waheed (2001 P.Cr.L.J. 698) and Mst.
Ameer Khatoon v. Faiz Ahmad & others (PLD 1991 SC 787).
3. Contrarily, Mr. Siraj-uldslam Khan, Additional Advocate General Punjab assisted by Rana Muhammad Shafique, Deputy Prosecutor General, Punjab as well as learned counsel for the respondents have defended the impugned order on the ground that notwithstanding offer by an accused to be his own witness on oath in disproof of charge against him, he continues to enjoy all the immunities, protections and privileges available to him under the law while facing a criminal trial which is adversarial in nature; `according to them, Article 39 of the Qanun-e-Shahadat Order, 1984 read with Sections 161 and 162, Cr.P.C. Provides an absolute protection to an accused in respect of any statement attributable to him recorded by the police while he was in custody.
4. Heard:
5. Argument of the learned counsel that respondent No, 2 after entering the witness-box has exposed himself to the possibility of infliction of Qisas on him, though ingeniously articulated, nonetheless, is misconceived for the reason that general principles of jurisprudence from whatever source divine or temporal cannot be made applicable to an adjudicatory process without express legislative intent and approval through a statutory mechanism which in respect of punishment as Qisas is already in place. On the charge of homicide, Qisas can only be exacted from an offender either on the basis of a confession made by him or by meeting the standard of proof required by law within the contemplation of Section 304, P.P.C. Exercise of discretion by an accused to become his own witness in disproof of charge against him or against any person charged or tried together does not in any way expose him to the rigors of Qisas if standard of proof otherwise is not available.
The provisions of sub-section (2) of Section 340, Cr.P.C. Are beneficial and accused centric enabling him to meet the prosecution case halfway if he so desires; his failure in the witness-box to disprove the charge against him or dislodge the prosecution case would not entail additional adverse consequences as it does not absolve the prosecution to prove its case on its own. Law declared in the case of Mst. Ameer Khatoon v. Faiz Ahmad & others (PLD 1991 SC 787), one of finest pieces of our juridical literature, confirms the above position.
' Argument that once an accused had opted to enter the witness-box, he was stripped off all the immunities and protections available to him and was liable to be treated at par with any other witness is also besides the mark; as pointed out above, the provisions of sub-section (2) of Section 340, Cr.P.C. Are beneficial and accused specific, he continues to enjoy immunities and protections which are foundation stones in our system of dispensation of criminal justice and on top of them is exclusion of confession from consideration whilst in police custody except for information relating to discovery of a fact which is not the case in hand. This is so important a safeguard that to ensure safe administration of criminal justice its circumvention through any methodology cannot be allowed. Recording of statement of a witness under Section' 161, Cr.P.C. Is yet another protection extended to an accused to save him from possibility of any deviation from or improvement in the proposed evidence of the prosecution introduced initially; use of such statement is unambiguously mentioned in Section 162, Cr.P.C. Even a prosecution witness deposing in deviation from his statement under Section 161, Cr.P.C. Cannot be confronted with what is purportedly attributed to him during the course of investigation; an accused in the dock is entrenched even more vigorously.
Reliance is placed on the case of Muhammad Sarfraz v. The State (PLD 2013 SC 386), by the same analogy and necessary implication, prosecution cannot be allowed to pin down an accused to a so-called first version, which by all means is a statement while being in police custody and thus, hit by Article 39 of the Qanun-e-Shahadat Order, 1984. The same view has been taken in Indian jurisdiction in the case of Sandeep Raj Singh v. State of M.P.
(Madhya Pradesh) (1997 (1) CCR 247), relevant portion is advantageously reproduced below:--- "From the language employed by the Legislature in the proviso to sub-section (1), it is crystal clear that a witness can be confronted/contradicted with his case diary statement only when such a witness is called for the prosecution. To put it differently, only a prosecution witness can be confronted/contradicted with his case diary statement, recorded under Section 161, Cr.P.C. And such statement can never be used for confronting/contradicting a defence witness, or a Court witness."
' Learned counsel while placing reliance on the case of Sarfraz Talib v. Abdul Waheed (2001 P.Cr.L.J.
698) has argued that in the said case, accused was pinned down to his firt version so as to be confronted with the same, I regret my inability to subscribe to the view taken in the cited case.
6. Our system of dispensation of criminal justice is adversarial in nature and except for the cases, which fall under exceptions enumerated in Chapter IV of the Pakistan Penal Code, 1860, it is primary responsibility of the prosecution alone to bring home charge against an accused beyond a shadow of doubt that too in a manner, which is least embarrassing to the accused, so that he could effectively and meaningfully defend himself against a charge. The learned Additional Sessions Judge has rightly declined to supply the copy of first version of respondent No, 2 purportedly recorded by the Investigating Officer during the course of investigation as this would have the effects of demolishing safeguards and protections, which are in place since long for an acbused confronting a criminal charge.
' In view of the above, this criminal revision being devoid of merits is dismissed.
Criminal revision .