' ARSHAD MAHMOOD TABASSUM, J.---Through this single judgment, I intend to dispose of two criminal revision petitions i,e, Criminal Revision No,396/2010 and Criminal Revision No,356/2011, as both arise out of the proceeding of one and the same case and involve common questions of law and facts.
2. Through the Criminal Revision No,396 of 2010, the petitioner calls in-question order dated 3-8- 2010, passed by the learned Addl. Sessions Judge, Khanewal, whereby, during trial in a private complaint under sections 302, 109, 34, P.P.C., he disallowed a question put to Bakhat Ali P.W.1/complainant by the learned defence counsel during the cross-examination. Through the other Revision Petition No,356 of 2011, the petitioner calls in question orders dated 4-4-2011, 18-4-2011, 22-4-2011, 18-6-2011, 24-6-2011 and 29-8-2011 passed by the learned Addl. Sessions Judge, Khanewal on various occasions during the trial of the said case.
3. It appears that vide order dated 3-8-2010, the learned trial court disallowed a question put to Bakhat Ali P.W.1 by observing that: "The question pertaining to Rapat No, 16 dated 12-9-2006 are relating to the 1.0 and the same may be asked from him".
4. Similarly, vide order dated 18-6-2011, the learned trial court observed as under:-- "Rappt Roznamcha No, 16 dated 12-9-2006, was reduced into writing on the statement of Bakhat Ali Shah, complainant. Learned counsel for the defence requested to get a copy of rapt roznamcha confronted which was objected by complainant's counsel that defence may produce the said copy after procuring as per law. The learned Defence counsel intends to mark the original parat of concerned Ruppt of Rozmancha. As resolved earlier, the same may be placed after getting the copy of concerned Ruppt Rozmancha in accordance with law"
5. Likewise, the learned trial court turned down the request of learned defence counsel for bringing on judicial file certain affidavits available on Police file with the following observations:-- "learned defence counsel requested before the Court sworn affidavits be brought on judicial file.
Learned counsel for the complainant objected to this. Main contention of the defence has already been brought on record, sworn affidavits which are part of Police file are also placed on record, request is turned down".
6. The petitioner is also aggrieved of order dated 24-6-2011, whereby, the learned trial court observed as under:-- "The learned Defence counsel intended to put copy of Ruppt Rozmancha No,16 dated 12-9-2006 issued by Moharar of Police Station Kohna under his hand which is just reproduction of the above mentioned Ruppt. The learned counsel for the complainant objected the same. The proposed document is neither photo stat nor certified copy, therefore, same is not admissible and is turned down and returned to the learned defence counsel. I cannot say that Ruppt No, 16 dated 12-9- 2006 is jest of FIR or not because I have not written the same. I compared Ruppt No, 16 dated 12-9- 2006 with FIR of this case. In Ruppt No, 16 dated 12-9-2006 the facts of conspiracy and motive are not mentioned. Learned counsel objected that witness is neither author of the Ruppt nor it was written in his presence. The question relating to Ruppt No, 16 are disallowed".
7. The learned trial court also dismissed application submitted by learned defence counsel on behalf of the accused for summoning of Moharrir of the Police Station with record of Rapat No, 16 dated 12-9-2006, vide order dated 29-8-2011.
8. Learned counsel for the petitioner has argued that the impugned orders are against law and facts of the case which have been passed on wrong assumption of law on the subject and have resulted into miscarriage of justice and deprived the accused/petitioner of the opportunity of fair trial.
9. Conversely, learned counsel appearing on behalf of the respondents has fully supported the impugned orders.
10. I have heard both the learned counsel for the parties and perused the documents annexed with this petition with their able assistance.
11. It appears that it is version of the defence that before lodging of the FIR, Rapat No,16 dated 12-9- 2006 was lodged by Bakhat Ali P.W.1. Certified copy of the said rapat is available on the file of Revision Petition No,356 of 2011. The I.O. Of the case namely, Noor Elahi while appearing as CW-5 has stated during the cross-examination "Rapat No, 16 dated 12-9-2006 was reduced into writing on the statement of Bakhat Ali, complainant."
12. During cross-examination on Bakhat Ali P.W.1, when learned defence counsel tried to put a question to the said Bakhat Ali pertaining to Rapat No,16 dated 12-9-2006 he was not allowed to put the said question by the learned trial court with the following observation:- "The question pertaining to Rapat No,16 dated 12-9-2006 are relating to the 1.0. And the same may be asked from him".
13. It appears that the said question was erroneously disallowed because Rapat No,16, as per record, was lodged by Bakhat Ali P.W.1 and he was the relevant person from whom question pertaining to the said rapat might be asked during cross examination, being the person who had lodged the said rapat. The contents of the said Rapat fell within the ambit of "previous statement" as mentioned in Article 140 of the Qanun-e-Shahadat Order, 1984, and since it was an official register and entries therein were made in discharge of official duties which, if relevant concerning a fact in issue a court of law, could be used and brought on record under Article 140 of the Qanun-e- Shahadat Order, 1984. The said Article is reproduced below for the sake of convenience of reference:-- "140. Cross-examination as to previous statements in writing. A witness may be cross-examined as to previous statements made by him in writing or reduce into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
14. Reliance in this regard may also be placed on 1990 PCr.LJ 1677 (Dr. Iftikharul Haq v. The State and others), relevant portion whereof reads as under:-- "It is manifest from the said provisions that the word statement does not necessarily imply that it must be communicated to another person or to be made in the presence of some persons but all those entries as given in the above Article of the Qanun-e-Shahadat have also been termed as statement and in view of this legal position the meaning of the term 'statement' occurring in Article 140 of the Qanun-e Shahadat cannot be limited to the one argued by the learned counsel for the complainant and as ordinarily understood."
' Thus, it appears that the order dated 3-8-2010, whereby, learned defence counsel was restrained from putting question regarding rapat No,16 to Bakhat Ali P.W.1 is illegal and the sanie merits setting aside.
15. Coming to the next order dated 22-4-2011, whereby, request of learned defence counsel for getting the copy of Rapat No,16 confronted to Noor Elahi, the I.O. Of the case while being under cross-examination as CW-5 was turned down. It appears that said order is also without any legal justification. In this regard it may be observed that the original roznamcha was produced before the court and learned trial court could conveniently allow taking of copy there from through process of photo stat and it could be got attested by the person producing the same and then placed on record as also confronted to CW-5, who was the I.O. Of the case and had dealt with the investigation right from the beginning till the end. Moreover, the said Rapat, being previous statement of Bakht Ali P.W. Could be confronted to him during cross-examination and availed against him by drawing his attention to its contents in accordance with the procedure laid down in Article 140 of the Qanun-e-Shahadat Order, 1984. Reliance in this regard may be placed on 1994 SCM R 65, (Syed Qamar Ahmad and another v. Anjum Zafar and others), the relevant portion whereof reads as under:-- "If a witness is not confronted with his previous statement and no explanation is sought from the witness that contradiction cannot be taken into consideration."
16. As regards order dated 18-6-2013, whereby, the request of learned defence counsel for placing on record certain affidavits after detaching the same from the Police file was turned down, it appears that the said affidavits if collected during the investigation by the I.O. Could be proved through producing the deponents as DWs. Mere transfer of such affidavits from the Police file to the judicial file would have not served any useful purpose.
' However, if any deponent of such affidavit is produced as DW, the affidavit sworn in by him would be detached from the Police file and placed on the judicial file, if such deponent owns and proves such affidavit.
17. Vide order dated 24-6-2011, the learned trial court refused to receive in evidence copy of Rapat No,. 16 dated 12-9-2006, issued by Moharrir of Police Station under his hand, holding that the same was just reproduction of the above mentioned report. To my mind, copy of such rapat was issued by the Moharrir concerned by copying the same from the original register and certifying that the same was true copy of the original. Thus, the said copy was quite admissible in evidence, but under erroneous assumption, same was refused to be received in evidence. The learned trial court shall receive in evidence certified copy of such rapat, if certified to be true copy by the Moharrir and tendered in evidence by the learned defence counsel.
18. Vide order dated 29-8-2011, the request of the learned defence counsel for summoning record keeper, Excise and Taxation Office, Khanewal was turned down. It appears from the record that the said Record Keeper was being summoned by the learned defence counsel to ascertain as to whom the motor cycle recovered in this case and allegedly used during the occurrence belonged.
To my mind, the said Record Keeper could not be refused to be summoned by holding that the application was made to cause delay in the disposal of the case. Such observation was ill founded, especially in view of the fact that matter was pending in the court of learned Addl. Sessions Judge, Khanewal while the office of Excise and Taxation Officer was also located in the same city and it could not cause any delay in the disposal of the case had the relevant record been summoned with Record Keeper. This order has also resulted in miscarriage of justice, the same is, therefore, set aside and it is directed that learned trial court shall summon the Record Keeper with relevant record and afford an opportunity to the learned defence counsel to place the same on record.
19. Before parting with this judgment, I may observe that in view of the newly inserted Article 10-A in the Constitution of the Islamic Republic of Pakistan regarding right to fair trial, it has been guaranteed by the Constitution that in any criminal charge against a person, he shall be entitled to fair trial and due process. Due to passage of the impugned orders, to my mind, the right of the fair trial has been denied to the accused/petitioners.
20. I may also observe here that learned counsel for the respondents has vehemently argued that the trial of the petitioners/accused has since been concluded, including recording of statement under section 342, Cr.P.C., hence, the matter should not be reopened because it may amount to de novo trial. I am not much impressed by this submission made by the learned counsel for the respondents for the reason that the learned trial court shall only provide an opportunity to the learned defence counsel to further cross-examine Bakhat Ali, P.W.1 confining himself to the point of Rapat No,16 dated 12-9-2006. Similarly certified copy of Rapat No,16 shall be .Received in evidence and the relevant record shall be summoned from the office of Excise and Taxation Officer. Rest of the proceeding conducted so far shall remain intact. The learned trial court shall endeavour to decide the case as early as possible, because it has already been delayed inordinately.
21. Both the revision petitions are allowed in the above terms.