By this criminal revision application filed under section 439, Cr.P.C., the applicant has questioned the propriety and legality of the orders, dated 2-4-1989 and 24-5-1989, passed by learned 1st Additional Sessions Judge (East) Karachi, in Sessions Case No.1898 of 1985 under section 302/34, P.P.C.
2. The grievance of applicant Muhammad Bashir who is one of the accused in the above Case is that he has not been supplied with the copies of 161, Cr.P.C. Statements of P.Ws. Imtiaz and Ansar Shamsi recorded by Iqbalur Rehman, S.I.P., in violation of the mandatory provisions of law. On 12-9- 1988, an application under section. 251(A), Cr.P.C. Was moved on behalf of the applicant for the supply of 161, Cr.P.C. Statements of the above witnesses which was disposed of in the following terms:-- "Heard the advocate and A.P.P. It is stated by the learned A.P.P. That statements in question are not in file. Issue summons to the Investigating Officer Siraj-ud-Din and lqbal-ur-Rehman to attend the Court so that the enquiry may be made."
3. Sirajuddin Ahmad, Assistant Director, F.I.A., who is one of the Investigating Officers in this case appeared before the Court and moved an application on 24-3-1989, stating therein that the said statements were missing from the police file. On the basis of this statement the learned Additional Sessions Ridge dismissed the prayer of the applicant vide order, dated 2-4-1989. The applicant repeated his application on 22-5-1989 with the following prayers:-- "That, as submitted in his application, dated 29-3-1989, it is most respectfully prayed that justice demands that the said Investigating Officer may kindly be recalled and examined on oath so that truth may come out. On his part the accused is prepared to pay to and for expenses to be incurred by the said witness and other expenses connected therewith, .i.e. Breakfast or lunch expenses etc."
4. The learned Additional 'Sessions Judge rejected, this application also vide order, dated 24-5- 1989, holding that there was no justification to recall the Investigating Officer to support his statement on oath. It is in these circumstances that the present revision application has been filed.
5. I have heard Mr. MA. Wahab Khan, learned counsel for applicant and Mr. M. Hayat Qureshi, learned counsel for State. The latter has not supported the impugned orders.
6. The provisions, of section 251(A), Cr.P.C., although not mandatory but its non-compliance may cause prejudice to the accused. The record shows that, 161, Cr.P.C. Statements of both Imtiaz and Ansar Shamsi were recorded by Iqbalur Rehman, S.I.P., which are presently not forthcoming. The procedure to be adopted in such an exigency is laid down in the case reported as State v. Habibur Rehman and another PLD 1983 SC 286. The learned Additional Sessions Judge has in fact failed to appreciate the importance of the above B statements recorded by Iqbalur Rehman, S.I.P., specially when Imtiaz and Ansar Shamsi figured as eye-witnesses in F.I.R. The prayer of the applicant was a reasonable one and, there was no occasion to refuse it.
7. In the above circumstances I allow the revision application and set aside the orders, dated 2-4- 1989 and 24-5-1989 passed by learned Additional Sessions Judge, who is further directed to depute any other Police Officer other than Sirajuddin Ahmed, Investigating Officer, to search and submit section 161, Cr.P.C. Statements of prosecution witnesses namely, Imtiaz and Ansar Shamsi, recorded by Iqbalur Rehman, S.I.P. On 23-6-1972 before him in Sessions Case No-1898 of 1985.