Order accordingly. ---- S. 162 --- Case diaries, use of --- Trial Court, whenever so requested by the accused or his counsel, should look at the case diary, a copy whereof is invariably made available to him in a sealed cover along with the challan in every case, to ascertain the relevancy and reasonableness of the request---After going through the relevant portion thereof, if trial Court finds that request is relevant and reasonable, he may direct the Investigating Officer present in the witness box to peruse the case diary and answer the question and the witness is bound to obey --- If the request is not relevant and reasonable, he may decline the same but he cannot refuse to look at the case diary before declining the request, nor he can say that it is not his function --- Whatever decision he takes and whatever he observes must be brought on record distinctly, either within brackets or inverted commas.
Abdul Aziz v. Tara Chand AIR 1921 All. 86 and Mohiuddin Khan and others v. King Emperor AIR 1924 Pat. 829 rel.
(b) Criminal Procedure Code (V of 1898)-- ---- S. 162 --- Confrontation of Investigators with case diaries --- Guidelines provided.
(c) Criminal Procedure Code (v or 1898)-- ---- Ss. 162 & 439 --- Investigating Officer during his cross-examination in a murder case gave evasive answers and tricd to suppress certain facts --- Defence counsel requested the Trial Court to peruse the case diary to determine the relevancy of his questions and then to direct the witness to look at the case diary for refreshing his memory to answer his questions --- Trial Court declined to oblige him on the ground that it was not his function to do so --- Such order of the Trial Court was set aside in revision with the direction that if the Trial Court after perusal of the case diary comes to conclusion that the witness had purposely suppressed the fact being elicited from him, he shall make, an observation to that effect and besides directing him to answer the question of defence counsel after refreshing his memory with the help of case diary, may also proceed against him under the relevant provisions of law.
Abdul Aziz v. Tara Chand AIR 1921 All. 86 and Mohiuddin Khan and others v. King Emperor AIR 1924 Pat. 829 rel.
Ch. Ghularn Bari Saleemi for Petitioner. Rana Muhammad Arif, A.A.-G. For the State.
Date of hearing: 29th April, 1992.
JUDGMENT - 'r Liaqat Ali Shah Inspector/SHO Police Station 'B' Division Kasur, who had investigated the murder case titled "The State v. Liaqat Ali etc.", was being examined as a prosecution witness (P.W. 15).
Since he was the investigator in the case, the learned defence counsel, during the course of his cross-examination, asked him certain questions. He allegedly gave evasive answers and tried to suppress certain facts concerning the statement of the injured recorded by him which, after his death, was being used as a dying declaration. The learned defence counsel having failed to obtain straight answers to his questions, requested the learned trial Judge to peruse the case diary, obviously to determine the relevancy of his questions, and then to direct the witness to look at it (case diary) for refreshing his memory to answer his question. The learned trial Judge declined to oblige him on the ground that it was not* function to do so. This situation arose thrice during the cross --examination of the witness on 16-4-1992 and, as a result of the controversy having so arisen, his statement was left unconcluded to enable the learned defence counsel to invoke the revisional jurisdiction of the Court. Hence this revision.
2. The learned counsel for the petitioner contends that the learned trial Judge on the request of the learned defence counsel, was bound !o look at the case diary and if the fact sought to be elicited from the witness was available therein, then he was bound to ask the witness to go through the case diary and answer the question but his reasonable request was arbitrarily turned down to the prejudice of his client because had the witness answered his question in affirmative, he would have succeeded in eroding the evidentiary value of the dying declaration. In support of his contention he has quoted Abdul Aziz v. Tara Chand AIR 1921 All. 86 and Mohiuddin Khan and others v. King Emperor AIR 1924 Pat. 829.
3. Learned Assistant Advocate-General, on the other hand, is of the view that the learned trial Judge was competent to refuse the request of the learned counsel for looking at the case diary of the police which is a secret document.
4. The authorities quoted by the petitioner's counsel provide useful assistance on the question involved and I am inclined to agree with the dictum that the learned trial Judge, whenever so requested by the accused or his counsel, should look at the case diary, a copy whereof is invariably made available to him in a scaled cover along with the challan in every case, to ascertain the relevancy and reasonableness of the request. After going through the relevant portion thereof, if he finds that request is relevant and reasonable, he may direct the Investigating Officer present in the witness-box to peruse the case diary and answer the question and the witness is bound to obey. If the request is not relevant and reasonable, he may decline it but he cannot refuse to look at the case diary before declining it, nor he can say that it is not his function. Whatever decision he takes and whatever he observes, must be brought on the record distinctively, either within brackets or in inverted commas which course has not been adopted in the instant case and the requests and orders have been written in such a manner as if they are part of the witness's statement.
However, I would like to observe that the learned defence counsel, most of whom are now-a-days in possession of illegally procured photostats of case diaries (an abominable practice which needs to be discarded by all concerned, particularly by the police officials who supply the same in violation of law) with their help can ask and often ask numerous questions to the investigators being examined as prosecution witnesses. They should know that while making a request of this kind to the learned trial Judge, they cannot make it a routine affair because this method, in a way envisages an indirect process of confrontation with a writing and under the law an investigator cannot be often confronted with his case diaries. A witness can only be confronted with his statement recorded under section 161, Cr.P.C. And with some of his previous statements and an investigator is ' not a witness can only be type. At the some time I would also like to observe that there is an unfortunate tendency amongst the police official- appearing as investigators to suppress certain facts available on the record by giving evasive answers, generally saying that they do not remember. Here the need to make them remember with the help- of case diary would arise if the facts elicited are material. The learned trial Judge must intervene at this stage and ask them to answer the questions without reference to case diaries unless they are unreasonably intransigent. In that event they should be asked to go through therelevant case diary but subject to the condition of reasonableness of the questions sparingly asked In that case, the learned trial Judge should make an observation about the demeanour of the witness and after the ultimate decision of the case, should proceed against him in accordance with law. In the case in hand, the learned trial Judge, if, after the perusal of the case diary, comes tothe conclusion that the witness purposely suppressed the fact being cited from him, shall make an observation to that effect and, besides directing him to answer the question of the learned defence counsel after refreshing his memory with the help of the case diary, may also proceed against him under therelevant provisions of law. He can also ask the higher police authorities, by sending a copy of the observations so made, to take disciplinary action against him and they are bound to do so.
6. In view of the above, the revision petition is accepted and the I impugned orders of the learned Additional Sessions Judge, Kasur, are set asideand he is directed to complete the statement of the said witness in accordance with law and enunciated above.
N.H.Q./M/371/1