QAZI MUHAMMAD AMIN AHMED, J:- Abdul Sattar, hereinafter referred to as the deceased, an Accountant in the police department was done to death inside his house situated within the area of Arazi Yaqoob Shah of Police Station Noor Shah, District Sahiwal. The incident occurred on 7-7- 2013 at 9:00 p.m. and was reported to the police at the spot at 11:50 p.m. by Muhammad Imran, son of the deceased; eight persons clad in police uniform were accused to have committed the crime, none was nominated nor any specific motive cited, however, it is alleged that the assailants searched the cupboards and police files and took away weapons belonging to the deceased.
During the occurrence, Muhammad Saeed PW sustained firearm injury; Abdul Jabbar PW accompanied the complainant and the injured at the spot and witnessed the occurrence. The case was set up through FIR No.278 which contained all the relevant details furnished by Muhammad Imran complainant.
Subsequently, Mst. Rani Bibi mother of the deceased came forward with a different story and a second First Information Report was registered on 28-2-2014; she nominated Zaheer Abbas, Asghar Ali Ramay, Muhammad Nawaz and Saeed Ahmad as accused for having committed the murder within her view as well as of Abdul Jabbar and Munir Ahmad PWs; the status of Saeed Ahmad was transposed from a prosecution witness to an accused in the subsequent FIR.
Feeling dissatisfied with the police investigation, a private complaint was filed by Abdul Jabbar who throughout held the position of an eye witness of the incident, wherein process was issued against the nominated accused on 13-12-2014 by a learned Addl. Sessions Judge at Sahiwal. The accused through an application requested for supply of copies of statements of PWs recorded under Section 161 Cr.P.C. those included statement of Abdul Jabbar which was allowed on 20-12- 2014 and accordingly copies of statements of all the witnesses previously examined under Section 161 Cr.P.C. were supplied to them; the accused were indicted on 3-1-2015 when they claimed trial after denying the charge. It is in this backdrop that when Abdul Jabbar entered the witness box and deposed against the subsequently nominated accused, he was confronted with his statement dated 8-7-2013 recorded under Section 161 Cr.P.C, when he denied to have made any statement to the Investigating Officer on 8-7-2013; the learned trial Judge vide impugned order dated 23.02.2015 in view of denial by the witness disallowed the defence to confront Abdul Jabbar PW with statement dated 8-7-2013 purportedly made by the said witness before the Investigating Officer, vires whereof, are contested through this revision petition.
2. What appears to have weighed with the learned trial Judge in declining opportunity to the defence confront Abdul Jabbar PW is plain language of Section 162 Cr.P.C. which inter alia provides that before such an exercise is undertaken the statement sought to be confronted requires to be "duly proved" and denial of the witness casts a duty upon the defence to prove the said statement in the first place and thereafter seek re-examination of the witness for the said purpose.
3. Mr. Tahir Bashir Choudhry, Advocate, learned counsel for the petitioners while relying upon the cases of Mohinder Singh Vs. Emperor (AIR 1932 (Lahore) 103), Muzaffar Khan Sikandar Khan and others Vs. Emperor (AIR 1939 (Lahore) 268), Muzaffar Khan Vs. The State & another (1977 P.Cr.L.J.
937), Abdul Majeed Vs. The State (1995 P.Cr.L.J. 1124), Sajjad Hussain Vs. The State (PLD 1996 (Lahore )286), The State and others Vs. Abdul Khaliq and others (PLD 2011 S.C. 554), Mehdi Khan Vs. The State & others (2015 P.Cr.L.J. 26) and Mehdi Hassan alias Ghulam Abbas & 3 others Vs. The State & another (2015 YLR 782) argued that the learned trial Judge ran into error in refusing the defence to confront Abdul Jabbar PW with his previous statement dated 8-7-2013 wherein he omitted to nominate any of the accused for the crime and that it was rather late in the day for the said witness to come up with a different story for which he was liable to be duly confronted with the same for a meaningful, effective and reasonable defence by the accused facing a charge which entailed capital penalty. The bottom line of the argument is that the petitioners would be seriously prejudiced in their defence if the testimony of Abdul Jabbar PW is concluded without an opportunity to confront him with his improved version, in the first place.
4. Contrarily, Mr. Nazar Muhammad Fatyana, Advocate, learned counsel for the respondents has defended the impugned order and relied upon the cases of Sheikh Usman Sheikh Umar Vs. Emperor (AIR 1928 Bombay 23), Najib Ullah Khan, etc. Vs. Saifullah, etc.(1980 CLC 2155), Dr. Khalid Moin & others Vs. The State & others (2006 P. Cr.L.J. 639), The State & others Vs. Abdul Khaliq & others (PLD 2011 S.C. 554) and Muhammad Sarwar Vs. Muhammad Afzal & 2 others (PLD 2013 Lahore 8) in support thereof.
5. Heard.
6. Our system of dispensation of criminal justice is adversarial in nature with a primary duty cast upon the prosecution to bring home charge against the accused confronting indictment and in the process the accused is provided procedural as well as substantive safeguards to defend himself effectively without any prejudice in a trial where he felt least embarrassed or handicapped.
Recording of statement of a witness under Section 161 Cr.P.C. and its use provided in Section 162 Cr.P.C. is one of those safeguards which ensure that an accused confronting a criminal charge would not be taken by surprise as he would know much in advance the names of the witnesses and nature of accusation during the trial. Examination of a prosecution witness under Section 161 Cr.P.C. and its reduction into writing is yet another safeguard of equal importance to preclude a witness from deviating or improving upon his position taken by him on the day one; these safeguards would become meaningless if prosecution is not allowed to confront an unscrupulous witness with his departure from his previous position. Sections 161, 162 and 265-C Cr.P.C. read with Article 140 of the Qanun-eShahadat Order, 1984 jointly put in place this vital safeguard to ensure safe administration of criminal justice.
Prosecution of offences and infliction of corporal penalties is one of the fundamental attributes of the State; even after introduction of Islamic provisions, State paramountcy is not relegated to a lower pedestal and all actions and steps taken towards the prosecution of crimes being official acts are deemed to have been genuinely done; it is not open for the prosecution to record statements, appends copies thereof with a report under Section 173 Cr.P.C. for onward supply to the accused and then take a somersault of denial; supply of copies of such statements to the accused by the prosecution itself is an ample proof about their genuineness and having been recorded in the manner as asserted by the prosecution. A bare denial would not wrap up these elaborate arrangements and a witness cannot be allowed to set at naught these fundamental safeguards so as to hold in abeyance impeachment of his character till a formal proof as this will have the effects of militating against the concept of "Procedural Fairness" which is well-rooted in our jurisprudence being an integral part of Due Process of law; it requires that an accused is well placed to effectively defend himself and no additional or extra space is allocated to the prosecution to manipulate a situation to his disadvantage. A denial by a witness of his having made a statement to the Investigating Officer during the course of cross-examination would merely cast an onus on the defence to solicit its proof at appropriate stage from the relevant witness which is Investigating Officer who recorded the statement. The same view has been taken in the case of The State & others Vs. Abdul Khaliq & others (PLD 2011 S.C. 554) relevant portion whereof is advantageously reproduced below:- "In this context, it may be held that prosecution while confronting a P.W. under Article 140 of QSO, 1984 with his previous statement may use any of his previous statement not necessarily those recorded under sections 161 and 164, Cr.P.C. without the proof of those at that time. If the witness admits of having made such statement there is no need for the proof, but if it is denied, then through the process of confronting him and recording the inconsistency may be completed by the court, whereas such material cannot be used against the prosecution, until and unless the confronted statement is subsequently proved by the defence......"
Deferring confrontation in the face of denial till the statement is "duly proved" and re-summoning of the witness thereafter is not in consonance with the law declared by the Hon'ble Supreme Court of Pakistan in the supra case and the principal of "Procedural Fairness". Therefore, this revision petition is allowed and the impugned dated 23-02-2015 is set aside; defence shall be allowed opportunity to confront Abdul Jabbar PW with his purported statements, previously recorded. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.