This case raises a question of law of some importance upon which there is a complete dearth of judicial pronouncement.
2. Applicant Gul Bahar is facing trial for the offence under section 328--399, P.P.C. (Crime No.78 of 1987) Railway P.S., Karachi Cantt., in the Court of VI Additional Sessions Judge (South), Karachi. He was supplied copies of statements of all witnesses recorded under sections 161, Cr.P.C. And 164, Cr.P.C. In terms of section 265-C, Cr.P.C., which included 164, Cr.P.C. Statements of five witnesses recorded in Sindhi language. The Advocate for applicant who is ignorant of Sindhi language applied for Urdu translation of these statements, which prayer was refused by learned Additional Sessions Judge vide order, dated 11-1-1992 in the following words:-- "Heard the Advocate for accused. The copies of the (statements) of witnesses are in Sindhi and they were received in Sindhi. Copies can only be supplied in Sindhi. Application rejected."
This order is the subject-matter of the present revision application.
3. I have heard Mr. Jawaid Haider Kazmi, learned counsel for applicant. Unfortunately none has appeared on behalf of State to assist this Court on this important question of law.
4. Under section 162, Cr.P.C. The Courts were bound to grant to the accused at his request copies of statements made to the police during the investigation of the persons called for the prosecution in a trial. This 'exercise was, however, confined during the course of trial and not before the commencement of trial. The Code of Criminal Procedure (West Pakistan Amendment) Act, 1964, added section 251-A, Cr.P.C. In the following words:-- Supply of copies of statements of section 161 to the accused.--- In all cases instituted upon police report, except- those tried summarily, copies of, statements of all witnesses recorded by the police under section 161 and of the inspection note recorded by an investigation officer on his first visit to the place of occurrence, shall be supplied to the accused seven days before the commencement of the trial free of costs: Provided that if any part of a statement recorded under section 161 is such that its disclosure to the accused would be inexpedient in the public interest, such part of the statement shall be excluded from the copy of the statement furnished to the accused."
5. The Code of Criminal Procedure (West Pakistan Amendment) Act, 1964, not only added section 251-A, but it also amended sections 256 and 257, Cr.P.C., and after these amendments the accused was restricted to crossexaminer the witnesses only one as against three opportunities which were available to him. What then, was the object of introducing section 251-A, Cr.P.C. In this context? In the elegant words of Sardar Muhammad Iqbal, J. (as. He then was), expressed in The State v.
Gaman, Khan and others reported in PLD 1966 B J 30:-- "The accused is presumed to be innocent, and it is a fundamental R principle of administration of justice to give all reasonable facilities to him to defend himself properly. The right of the accused to cross-examine a prosecution witness more than one as already stated, was taken away by the amendment. It was thought necessary to do so to avoid the delay in the trials and thereby to achieve the -well-coveted end of a speedy justice. The Legislature at the same time made sure that the accused does not suffer by such an amendment. They, therefore, to facilitate him in his trial specifically provided that he should be given the copies of all the statements recorded by the police at least seven days before the trial commenced. They did not place any limitation that the copies should be only of the statements of the witnesses whom the prosecution is to produce; or that they should be of material witnesses, as it was recommended by the Law Commission. Once, the accused is given the copies of all the statements, and that too, much before the commencement of the trial, what more is needed for the accused to have more than one opportunities to cross-examine a witness. By the amendment whereas the object of a speedy trial may be achieved, a substantial and a reasonable facility has also been given to the accused to defend himself."
6. In the case of Abdul Rehman and others v: The State reported in PLD 1968 Lah. 514, a Division Bench held that the provisions of section 251-A, Cr.P.C. Were directory in nature and the non- compliance with the provisions will not have the effect of vitiating the proceedings or the trial unless it is shown that the case of an accused person has been prejudiced by that omission.
7. Chapter XXII-A, which dealt with the trials before High Courts and Courts of Session was added by the Law Reforms Ordinance, 1972, and completely substituted by the Code of Criminal Procedure (Amendment) Act, 1976 (XLIV of 1976). The newly-added section 265-C, Cr.P.C., which replaced section 251-A, Cr.P.C. Provided as follows:-- "265-C.-- (1) In all cases instituted upon police report,. Copies of the following documents shall be supplied free of cost to the accused not later than seven days before the commencement of the trial, namely:--
(a) the first information report;
(b) the police report;
(c) the statements of all Witnesses recorded under sections 161 and 154; and
(d) the inspection note recorded by an investigation officer on his first visit to the place of occurrence and the note recorded by him on recoveries made, if any: Provided that, if any part of a statement recorded under section 161 or section 164 is such that its disclosure to the accused would be inexpedient in the public interest, such part of the statement shall be excluded from the copy of the statement furnished to the accused.
(2) In all cases instituted upon a complaint in writing---
(a) the complaint shall---
(i) state in the petition of complaint the substance of the accusation, the 'names of his witnesses and the gist of the evidence which he is likely to adduce at the trial; and
(ii) within three days of the order of the Court under section 204 for issue of process to accused, file in the Court for supply to the accused as many copies of the complaint and any other document which he has filed with his complaint as the number of the accused; and
(b) copses of the complaint and any other documents which the complainant has filed therewith and the statements under section. 200 or section 202 shall be supplied free of cost to the accused not later than seven days before the commencement of the trial."
8. The object of this section appears to be to meet the vacuum created by the abolition of commitment proceedings and to make available to the accused through copies of statements of all witnesses examined by the police, all the available evidence which the prosecution have for the unfoldment of the true case before the Court (refer Nasrullah v. The State, reported in 1980 P Cr. L J 5).
9. Reading section 265-C, Cr.P.C. Together with sections 356, 360 and 361, Cr.P.C. It is apparent that the copies of statements etc., in terms of section 265-C are to be supplied to the accused in the language in which they are recorded. The accused cannot claim as of right the Urdu translation of the statements of witnesses recorded under section 161, Cr.P.C. Or under section 164, Cr.P.C. In Sindhi language which quite admittedly is one of the official languages of the Courts in the Province of Sindh. At least I do not find anything in section 265-C to support this contention. The case of Rita Margreft Randill v. The State reported in 1986 P Cr. L J 1801, which was decided by Federal Shariat Court, certainly appears to lend some colour to the prayer made by the applicant. Speaking broadly, however, this authority appears to me to create no difficulty. The most important point which this authority has been able to bring out is clear from the following observations:-- "The accused /petitioner is a British national and it is not disputed that she does not know Urdu.
Copies of documents stated above, were in Urdu which were supplied to the petitioner. Till the date of commencement of the trial, she had not the benefit of expert legal advice. Hence, she was not in a position to make up her mind about proper reply to the charge, on the basis of Urdu documents supplied to her. We are of- the view that copies of documents mentioned in section 265-C, Cr.P.C.
Should be supplied to an accused in a language which he understands, unless he is represented by a counsel engaged before commencement of trial."
10. In view of these observations, there is no room left for the argument that the advocate for the applicant who is not conversant with Sindhi language was entitled to Urdu translation of 164, Cr.P.C.
Statements of witnesses recorded in Sindhi language. In fact it was not difficult for the learned counsel of the applicant to get these statements translated in Urdu language from any of the copying agencies, if he was really serious in this respect.
11. There are other practicial considerations which to my mind reinforce this view. If the contention raised on behalf of applicant is accepted then it will lead to insurmountable difficulties, which may increase the miseries of under--trial prisoner, because this process might be used by the prosecuting agencies as an instrument for causing delay in the trial of such persons.
12. No case for interference is made out and the revision application is accordingly dismissed.
N.H.Q./G-293/K