SAYYED MAZAHAR ALI AKBAR NAQVI, J.---By means of instant criminal revision petition filed in terms of section 435, Cr.P.C read with section 439, Cr.P.C. the petitioner has assailed the vires of impugned order dated 13.12.201 1, passed by learned Sessions Judge, Mianwali; whereby during the course of trial in complaint, while sustaining the objection of the complain ant the learned trial court had refused to allow the petitioner to put a specific question to CW -1.
2. Facts of the case necessary for disposal of the petition in hand are that respondent No.1 lodged case FIR No.210, dated 10.09.2008, offence under sections 302, 324, 34, P.P.C., at Police Station Isa Khel, Mianwali against the petitioner and others. Subsequently being dissatisfied with the investigation carried out by the Investigating Officer the complainant filed complaint in which during the course of trial whole of the prosecution evidence was recorded. Thereafter , Zafar Iqbal Inspector was summoned as CW-1 and during the course of cross-examination upon him the following question was put:- "Q. Is it correct that you found the first version of the accused Bashir Ahmed as correct?"
However , learned counsel representing the complainant objected upon the question and such objection was sustained by the learned trial court, which is under challenge before this Court.
3. Learned counsel for the petitioner while advancing his case submits that the impugned order dated 13.12.201 1, passed by learned Sessions Judge, Mianwali, on the face of it is illegal, unlawful having been passed in utter disregard to the facts and circumstances and the law on the subject. Learned counsel while referring to dictum of law in the case of Liaqat Ali and another v. The State (1998 PCr.LJ 216), submits that first version of the accused is the only relevant material, which is admissible in evidence. Learned counsel further submits that first version of the accused' can be brought on record through cross-examination, therefore, while disallowing the question, the learned trial court fell in error, which is open for its rectification by this Court. Learned counsel for the petitioner in the end, prays for indulgence of the Court, in the circumstances.
4. Contrarily , learned Deputy Prosecutor General assisted by learned counsel for the complainant/respondent No.1 vehemently opposes the contentions raised by learned counsel for the petitioner . Learned counsel representing respondent No.1 submits that allowing question eliciting the opinion of the Investigating Officer about the guilt or innocence of an accused is an illegality , which has been deprecated by the apex Court of the country . In support of his contention learned counsel places reliance on the ratio decidendi of august Supreme Court of Pakistan in the case of Muhammad Arshad and others v. The State and others (PLD 2011 Supreme Court 350). In this backdrop it has been prayed that the instant petition is liable for its dismissal as the learned trial court was well justified in disallowing to put question to the Investigating Of ficer qua guilt/innocence of the accused.
5. I have given my anxious consideration to the arguments advanced by learned counsel for the petitioner , learned counsel representing respondent No.1, as well as, learned Deputy Prosecutor General and gone through the record available on file.
6. Having much regard for the case law of august Supreme Court of Pakistan as referred to by learned counsel representing respondent No.1/complainant, I may observe here that facts of the instant case are quite distinguishable. This Court is conscious of the fact that the only duty of the Investigating Officer is to collect evidence and place the same before the court of law for its determination and to hold innocence or guilt of the accused is the exclusive duty/prerogative of the trial court. However , accused first version immediately after the occurrence is relevant in view of Article 27 of the Qanun-e-Shahadat Order . 1984, which reads as under:- "27. Facts showing existence of state of mind, or of body , or bodily feeling. Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill will or goodwill towards any particular person, or showing the existenc e of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling is in issue or relevant."
Moreover , at the same time first version of the accused is the only material, which can be brought on record during the course of trial. Reference in this regard can be made to the dictum of law laid down in the case of Liaqat Ali and another v . The State (1998 PCr .LJ 216); wherein it has been held as under:- "---S. 302/34---Qanun-e-Shahadat (10 of 1984), Art.27--- Criminal Procedure Code (V of 1898), S. 375---First version of accused can be brought on record.---First version of the accused of whatever nature can be brought on record through cross-examination by putting the same to the Investigating Officer ."
In the celebrated judgment in the case of Ghulam Hussain v. The State (PLD 1974 Karachi 91), Dorab Patel, J, the author of the judgment while dealing with the issue had held:- "I, therefore, hold that the first version of the accused of whatever nature can be brought on record through cross- examination by putting the same to the Investigating Officer . It would certainly be, a safer course in dispensation of complete justice in an adversary system."
Similar view was propounded by Superior Court in India in a salutary judgment reported as Hasil son of Qabul v.
Emperor [AIR (29) 1942 Lahore 37 ]; wherein Justice Beckett had observed as under:- "Criminal trial---Duty of prosecution---Statement made by accused soon after occurrence should be brought on record."
Moreover , in the instant case the question put to the witness, who is Investigating Officer of the case, with regard to first version of the accused is a documen tary proof, which even otherwise is admissible and the same can also be taken into consideration by the learned trial court while passing the final judgment. Hence, when one thing is available on record in the shape of documentary evidence and the same can be brought on record, learned trial court was not justified in declining the petitioner to put question to the Investigating Officer with regard to first version
7. For the foregoing reasons, the instant criminal revision petition is allowed and the order dated 13.12.201 1 with regard to sustaining the objection of the complainant to put question to the Investigating Officer is set aside, as a consequence whereof, learned trial court is directed to allow the petitioner/accused to put question to the Investigating Officer/court witness as mentioned at the end of page No.7 of the statement of the Zafar Iqbal Inspector (CW -1).
8. The instant criminal revision petition stands allowed in the above terms.