1. SHAHAB SARKI, J.---Above three appeals are being heard together as they arise out of a common judgment.
2. Appellants Imran Irfan and Soobo were tried under Crime No. 321/2009 Police Station, Ubauro for offences under sections 365-A, 324, 353, P.P.C. And 7, A.T.A., 1997 and were convicted vide judgment dated 20.09.2011 for offence under section 365-A, P.P.C. Read with section 7, A.T.A., 1997 for imprisonment for life and fine of Rs.50,000/- each and in default of fine to undergo R.I for 02 years more; for offence under section 324, P.P.C. Read with section 7(b), A.T.A., 1997 they were sentenced to undergo RI for 10 years and fine of Rs. 10,000/- each and in default to undergo RI for one year more; and under section 353, P.P.C. Both the appellants were sentenced to undergo RI for 02 years.
3. In Crime No. 322 of 2009 of Police Station Ubauro, for offence under section 13(d), A.0, appellant Soobo was convicted to undergo RI for 07 years and fine of Rs. 5000/- and in default to undergo RI for one year.
4. In Crime No. 323 of 2009 of Police Station Ubauro, for offence under Section 13(d)A.O. Appellant Imran Irfan was convicted to undergo RI for 07 years and fine of Rs. 5000/- and in default to undergo RI for one year.
5. At the very outset Mr. A. R. Farooq Pirzada learned Counsel for appellant Soobo has agitated the issue of non-compliance of section 265-C, Cr.P.C. By the trial Court and has submitted that this issue may be heard and decided at the initial stage. The learned DPG has no objection to this proposal of the learned counsel.
6. Per learned Counsel the requirements of section 265-C, Cr.P.C. Have not been complied with by the trial Court as the copies of 161, Cr.P.C. Statements of the witnesses were not provided to the accused at the time of trial. He contends that the provisions of section 265-C, Cr.P.C. Are mandatory in nature and if the same are not complied with then the entire trial is vitiated. He has further submitted that the exclusive purpose of statement under section 161, Cr.P.C. Is to facilitate the accused in his defence as they are used to cross-examine the prosecution witnesses to bring out the contradictions in the case of the prosecution and thus are an essential instrument in the armoury of the defence. He has further submitted that under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 it is the fundamental right of an individual to be dealt with in accordance with law and no person can be prevented or hindered in his exercise for his right to defence. He also submitted that the case of the appellant is also covered under the right of free trial available to every citizen, and thus by non-compliance of the mandatory provisions of section 265-C, Cr.P.C.
7. The appellant has been seriously prejudiced. In support of his contentions the learned Counsel has placed his reliance upon 2005 YLR 2032 (Hakamuddin v. The State and others), 2011 YLR 2169 (Abdul Jabbar v. The State) 2007 PCr.LJ 233 (Nadeem Ahmed Unar and others v. The State) 1997 MLD 2869 (Mst. Nusrat Mian and another v. The State) PLD 1988 SC 99 (Naveed Asif v. The State) and PLD 2003 Lahore 290 (Muhammad Riaz and another v. The State).
8. Mr. Zulfiqar Ali Jatoi learned DPG in rebuttal has argued that the appellants were tried under the Anti-Terrorism laws and a special procedure has been prescribed in Anti-Terrorism Act, 1997 and by virtue of section 32 of the said Act, it has an overriding effect on other general laws, as it is a special law. In support of his contention he has placed reliance upon 2000 PCr.LJ 1418 (The State v.
9. Anees Bawani and others) He has also submitted that the defect, if any, is curable and does not vitiate the proceedings as no prejudice has been caused to the accused who has not only raised his defence through a competent Counsel but he has availed all opportunities available to him at the trial. In this regard he has placed his reliance upon 1986 SCMR 446 (Rehmat Ali v. The State), PLD 1968 Lahore 514 (Abdul Rehman and others v. The State and others) and 1968 PCr.LJ 263 (Abdul Subhan and others v. The State).
10. We have heard the learned Counsel, perused the record and have gone through the cited case laws. We will firstly take-up the issue of the applicability of the provisions of the Criminal Procedure Code to the proceedings under Anti-Terrorism Act, 1997, which talks about the overriding effect of this Special law. The relevant portion of section 32 is "the provisions of the Court shall, in so far as they are not inconsistent with the provisions of this Act, apply to the proceedings before a Special Court." We have also examined section 265-C, Cr.P.C. And we note that the provisions with regard to supply of copies to the accused is not inconsistent with the provisions of Anti-Terrorism Act, 1997 and thus to this extent they are fully applicable to the proceedings before the Anti-Terrorism Court.
11. The second and moot point which we have to answer is that if the copies of the statement under section 161, Cr.P.C. Are not provided to the accused at trial, would it partially or completely vitiate the proceedings, or not. The Counsel for the appellant has placed before us a number of judgments which are summarized as follows;
(i) Hakamuddin v. The,State 2005 YLR 2032.
12. The trial Court had provided the copies to the accused but it commenced the trial within 03 days and further it was argued in that case that new charges were added in continuity of the proceedings. The prosecution witnesses had also been called by the trial Court prior to the framing of the charge in a hasty manner, and the trial Court had practically pre judged the accused. The cited case is distinguishable as it is not a case of non-supply of documents but there were number of other procedural lapses and irregularities which had prejuliced the case of the accused.
(ii) In the case of Abdul Jabbar (Supra), there were certain documents which were relied upon by the prosecution and submitted by way of statement instead of through a challan and even the copies were not provided to the accused. The appellate Court held in the case that the purpose of providing documents is to enable the accused to know what defence he would have to face and counter at the time of trial so that he can mount a proper defence. It was the case under CNS laws and it was the matter regarding the officer who had submitted the alleged narcotic substance to the chemical examiner, and the appellate Court held that it was a vital piece of evidence which could not be withheld from the defence.
(iii) In the case of Nadeem Ahmed Khan and others, (Supra), the accused had made an application to the trial Court for supply of relevant material under section 265-C, Cr.P.C. And the trial Court had declined. In the revisional jurisdiction before High Court, the trial Court was directed to provide all documents under section 265-C, .Cr.P.C. To the accused.
(iv) In the case of Mst. Nusrat Mai, (Supra) the trial was based upon a private complaint but the copies of the said complaint were not provided to the accused. In the judgment of the trial Court there was a reliance upon such direct complaint and before the appellate Court it was admitted by the prosecution that no copies were provided and the matter was remanded to the trial Court by consent.
(v) In the case of Naveed Ahmed and others, PLD 1988 SC 99. The accused had duly applied to the trial Court and after the dismissal of their application had preferred a revision before the High Court and it was also dismissed. The Honourable Supreme Court held that it was the right of the accused to be provided the said copies.
(vi) In the case of Muhammad Riaz and another v. The State (Supra) the accused had also moved an application before the trial Court and sought the statements of those persons who were not cited as prosecution witnesses but the request was declined by the trial Court. The three member Bench of the Lahore High Court allowed the revision and held that the accused was entitled to the same.
13. The perusal of impugned judgment would reveal that the accused were provided copies and documents as required under section 265-C, Cr.P.C., (Page-3 of the impugned judgment) but they corresponding exhibit is not available in the record of the case. Be that as it may, we have examined the defence in some detail and have observed that all the prosecution witnesses were minutely and extensively examined and at no stage of the trial did any of the accused either raise any objection or move an application for supply of any copies. Perusal of the record also shows that right from the framing of the charge the accused were aware of the case against them and had ample opportunity to prepare their defence and the same is also reflected from the cross- examination conducted. In the case of Rehmat Ali v. The State 1986 SCMR 446 it was held by the Honourable Apex Court, after referring to section 537, Cr.P.C., that when the accused has consciously undergone the trial and contested the same vigorously and he had every opportunity to insist for supply of copies but chose to remain silent, then the question of prejudice does not arise and the trial is not vitiated. Section 537, Cr.P.C. Reads as follows:-
537. Finding or sentence when reversible by reason or error or omission in charge or other proceedings. Subject to the provisions hereinbefore contained, no finding, sentence order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account---".
(a) of any error, .Omission or irregularity in the complaint report by police- officer under section 173, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or
(b) of any error, omission or irregularity in the mode of trial, including any misjoinder of charges unless such error omission or irregularity has in fact occasioned a failure of justice, ' Explanation. In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
14. It is a settled principle of law that the accused has a right to obtain the copies of 161, Cr.P.C.
15. Statements, and such right is enshrined in section 265-C, Cr.P.C. The purpose of providing these statements is to enable the accused to contradict the witness(es) with his/their statement(s).
16. There is also no cavil to the fact that provisions of section 537, Cr.P.C. Are mandatory in nature and High Court cannot interfere without coming to the conclusion that there has been substantial error or failure of justice, due to any irregularity, during course of the trial. If, it is assumed, for the sake of argument, that copies of the statements under section 161, Cr.P.C. Were not provided to the appellants, even then we have to determine whether any failure of justice has occasioned and whether any prejudice has been caused to the accused/appellants. The learned Counsel for the appellants has not been able to point out any prejudice which has been caused to the accused/appellants. In this regard we have examined the evidence recorded by the trial Court and note that each and every prosecution witness has been extensively cross-examined. The I.O. Of the case has also stated in his deposition that he recorded 161, Cr.P.C. Statements of the prosecution,witnesses. If, the accused wanted to utilize their right to confront the witnesses with their statements under section 161, Cr.P.C., they could have moved an appropriate application for grant of the statements under provisions of section 265-C, Cr.P.C. The accused knew from very beginning the case which they had to meet and the prosecution has adduced evidence in this regard, and there were no restrictions on the defence raised by the accused. The accused did not even bother to raise such an objection before the trial Court to mitigate the alleged violation. Since the accused had ample opportunity to mount their defence, move any application, or to raise objection to any alleged violation of the procedure and they chose not to do so, we are convinced that no failure of justice has been occasioned in the instant case on account of alleged non-supply of statements under section 161, Cr.P.C. To the accused. The procedural irregularity, if any, stands covered under the provisions of section 537, Cr.P.C. And it's explanation. We therefore, hold that the trial is not vitiated on This ground taken by the learned counsel for the appellants. The case law cited by the appellants stands distinguished. They are directed to proceed with the appeals which would be heard and decided on their own merits.
17. Order according.