This is a revision petition filed by Shahbaz Khan, petitioner, against the judgment of the learned Sessions Judge, Okara, dated 22-6-1986, rejecting an application filed by the petitioner for admission of two documents in evidence on behalf of the prosecution.
2. The brief facts of the case are that one Liaqat Ali registered an F. I. R. At Police Station Depalpur on 6-7-1983 under section 302/307/ 326/34, P. P. C. Against Nasarullah Khan and others, presents respondents Nos. 2 to 4, and one other, in respect of an occurrence involving the death of three persons. Shahbaz Khan, the present petitioner, is an injured prosecution witness in the said case.
3. The trial in the above-stated case commenced before the learned Sessions Judge, Okara. All the prosecution witnesses having been examined, the case was fixed for the statement of the accused respondents, when an application was filed by Shahbaz Khan, petitioner, that the statements of two witnesses, namely, Muhammad Ali and Nasarullah, made during the inquiry proceedings in the private complaint case filed by Muhammad Khalid against Liaqat Ali and others, be permitted to be tendered in evidence. The said application was opposed by the learned counsel for the accused respondents. After hearing lengthy arguments in the matter, the learned Sessions Judge rejected the said application on 22-6-1986. Being aggrieved by the said order, Shahbaz Khan, petitioner, has now filed the present revision petition against the same, which is now before me for disposal.
4. On behalf of the petitioner it is submitted that on 25-3-1986, when he was being cross-examined in the State case against Nasarullah Khan and others, respondents, the learned counsel for the accused respondents inter alia put leading questions to him to elicit the admission that Nasarullah Khan had fired in the air, whilst his servants had fired at the complainant party. Since in the cross- complaint case filed by Muhammad Khalid against the present complainant party, Nasarullah Khan and Muhammad Ali, the present respondents Nos. 2 and 3, had appeared as P. W. 6 and P. W.
2 and their version was that Nasarullah Khan respondent No. 2, had fired in self-defence, it was necessary in the interest of justice that the certified copies of the statements of Nasarullah Khan and Muhammad Ali, respondents Nos. 2 and 3, recorded by the Magistrate in the inquiry proceedings, be tendered in evidence and exhibited so that it could be read as evidence in the case. In the light of these circumstances, it is submitted that the petitioner filed an application for the certified copies of the statements of Nasarullah Khan and Muhammad Ali, respondents Nos. 2 and 3, to be admitted in evidence at the , trial of the State case before the statements of the accused respondents were recorded. It is submitted that the certified copies of the said statements proved themselves under sections 76 and 85 of the Qanoon-e-Shahadat and being admissions made by the accused, they could be tendered in Court and should have been admitted in evidence to prove the said admissions. It is also submitted that the object of the petitioner was not to confront the accused respondents with these documents in order to discredit their character, and therefore, the statements could have been exhibited by the Court, when tendered in evidence. In this connection H. Rashiduddin v. Muhammad Habib (1) is relied upon.
Lastly it is submitted that these documents could have been admitted under section 540, Cr. P. C.
In this connection Abdul Sattar v. State (2) is relied upon.
(1) PLD 1976 Kar. 142(2) 1986 P Cr. L J 1536
5. On behalf of the respondents it is submitted that Shahbaz Khan, petitioner, being only a witness and not the complainant in the State case, he had no locus standi to file the present petition nor had he such locus standi to file the application before the trial Judge. It is further submitted that the certified copies of the statements of Nasarullah Khan and Muhammad Ali, respondents,, were not filed with the challan papers when the same were filed, nor were copies of the same supplied to the accused before the commencement of the trial and, therefore, the same cannot now be permitted to be tendered in evidence or exhibited. It is also contended that the learned District Attorney, when confronted by the trial Judge with the question as to whether he placed reliance on the statements of the accused respondents recorded in the counter-case, he replied in the negative though he further added that it was his duty as a prosecutor to place all relevant documents on the record. Considering that the learned District Attorney did not place reliance on the statements of the accused respondents recorded in the counter-case, it is urged that the said documents could not be permitted to be brought on the record. It is also contended that it does not lie in the jurisdiction of the District Attorney or even the complainant to present in advance evidence in respect of a defence which may be taken by the accused respondents, in order to meet a different defence which they may attempted to suggest at the trial and which they may or not formally assert later in their examination under section 342(1) or evidence under section 342(2), Cr. P. C. Lastly, it is submitted that section 540, Cr. P. C. Does not cover a case as the present and the application of the petitioner was rightly rejected by the learned Sessions Judge.
6. I have heard the arguments of the learned counsel for the petitioner the accused respondents and the State. The statements of Nasarullah Khan and Muhammad Ali, respondents in the preliminary inquiry in the complaint case filed by Muhammad Khalid against five members of the present complainant party were recorded on 30-8-1983 and 22-8-1983 respectively. The challan in the present State case was filed in Court on 25-11-1983. The evidence of Shahbaz Khan P. W. 7, the present petitioner and Liaqat Ali complainant P. W. 9 in the State case were recorded on 25-3-1986 and 8-8-1986. It, therefore, appears that it was on or after 25-3-1986 that the complainant party realized that the accused respondents, by the nature of the questions put in cross-examination, were trying to suggest that Nasarullah Khan, accused/respondent, had fired in the air, whilst his servants had fired at the complainant party, which was a defence which differed from the original case taken up by them in their private complaint, where it was their case that Nasarullah Khan, accused respondent, had fired in self-defence. The statements of the accused respondents have not yet been recorded under section 342, Cr. P. C. It is not possible to predict at this stage what their defence will be, when they are examined by the Court or they agree to have their statements recorded. The prosecution, or for that matter the complainant, cannot be permitted to introduce evidence in advance, to contradict a defence which the accused may or may not take up formally later, when they are examined or agree to have their statements recorded. Though section 105 of the Evidence Act (now section l2l of the Qanoon-e-Shahadat) places a burden on the accused of proving that his case comes within any of the General Exceptions in the Pakistan Penal Code, or within any special exception or proviso ` contained in, any other part of the said Code, or any law defining the offence, yet, s held by Abdul Rashid J., in Safdar Ali's case PLD 1953 FC93, the said section also does not cast any duty on the prosecution to examine all possible defences that might be taken on behalf of an accused and to prove that none of those defence would be of any assistance to him. It is thus clear that though the burden of proving certain defences may fall on the accused, yet it is not the duty of the prosecution to lead evidence in advance to counter all possible defences that might be taken on his behalf, though it would be its duty to prove the case beyond all reasonable doubts and to prove all ingredients of the offence charged. It is not the State's case that Nasarullah Khan, accused/ respondent, fired at the complainant party in self- defence. The District Attorney, therefore, rightly stated before the trial Court that he could not place reliance on the statements of the accused respondents recorded in the counter case. The District Attorney did not want to spoil his case by putting up two versions which were contradictory and in this respect, I think, he was right. Perhaps he wanted to wait till Nasarullah Khan and Muhammad Ali, accused/ respondents, in their examination by the Court under section 342, Cr. P. C. Did state that the former fired in the air, whilst his servants fired at the complainant party, so that he could then request the trial Judge to put their earlier statements to them to explain their admissions, if that was so legally permissible. Perhaps he also wanted to wait till the said two accused/respondents decided to give evidence on oath under section 340(2), Cr. P. C. In disproof of the charges and allegations made against them, so that he could then put the said statements to the said accused in their cross-examination and confront them with it, if their evidence was e contradictory to that in their earlier statements. This, I think, is the proper stage where such earlier statements can be put to the accused in cross-examination to secure their admission with regard to a line of action taken by them earlier. In any case the petitioner had no locus standi to file the petition under section 540, Cr. P. C. For admission in evidence of the said statements. The learned Sessions Judge was right in rejecting the application of the petitioner. The order of the learned Sessions Judge is neither capricious nor arbitrary. No interference in the revisional jurisdiction is, therefore, called, for.
7. For the foregoing reasons, there being no merit in this petition, the same is dismissed.