' This Criminal Revision under section 439, Cr.P.C. Has been filed calling in question the interlocutory order dated 23-1-1995, passed by the learned Addl. Sessions Judge, Kasur.
2. The facts leading to this revision petition are; that Abdul Majid, petitioner, and his co-accused are facing trial under section 302/324/148/149, P.P.C. In the Court of learned Addl. Sessions Judge, Kasur in case F.I.R. No,31/92 registered at Police Station, Mustafabad, District Kasur. Before the commencement of the trial, the learned lower Court supplied the copies of statements of the witnesses recorded under section 161, Cr.P.C. To the accused persons. These statements included the statement of Pervaiz Ahmed recorded by Muhammad Sadiq, D.S.P, C.I.A./Investigating Officer (certified copy of the said statement has been produced in this Court). It is not in the usual narrative form but in the shape of questions and answers. Pervaiz Ahmed appeared as P.W.11, during the trial. When he was being examined the defence counsel wanted to cross-examine this P.W. With reference to his said statement recorded by the D.S.P./C.I.A. Investigating Officer in terms of 1st proviso to section 162(1), Cr.P.C. The witness denied that he had ever appeared before the said Investigating Officer or that his statement was recorded by him. When the learned defence counsel tried to confront under Article 140 of the Qanune-Shahadat, Order, 1984, the said P.W. 11, with his above statement recorded by the D.S.P., the learned trial Judge upheld the objection of the prosecution and debarred the defence counsel from using the statement recorded by the police for cross-examining this witness. The learned trial Judge recorded two reasons for passing the impugned order; first, the P.W. Had categorically denied having ever appeared before the said D.S.P./Investigating Officer and secondly, the D.S.P. Only recorded the questions put by him and the answer given by the witness, in the police diaries and that no separate record of the statement of this P.W. Was prepared under section 161, Cr.P.C.
3. The learned counsel for the petitioner in support of this petition has relied upon Sarafat v. The Crown PLD 1953 Dacca 10, the State v. Gaman Khan and others PLD 1966 (W.F.), Baghad-ul-Jadid 30, Ch. Noor Muhammad v. The State 1969 PCr.LJ 568 and Nasrullah v. The State 1980 PCr.LJ 5, to urge that the statements of all the witnesses recorded by the police in whatever form whether in the shape of narrative or question answer form or even in the form of condensed or summarized statements of number of witnesses are covered by section 161, Cr.P.C.
4. The learned counsel for the State, on the other hand, had reiterated the same ground which prevailed with the learned trial Judge.
5. I have heard the learned counsel for the petitioner as well as the learned counsel for the State and have given my anxious consideration to the facts, law and the precedents cited. I am of the considered view that this revision petition must be accepted straightaway. Section 161, Cr.P.C. Does not lay down, the form in which the Investigating Officer has to record the statement of the person acquainted with the circumstances of the case. This statement may be in the form of narrative or in the shape of questions answers but subsection (3) of section 161, Cr.P.C. Casts a mandatory duty upon the Police Officer to make a separate record of such statements. The conduct of the police officer of not preparing separate record of such statements and instead of including them in the police diaries, prepared under section 172, Cr.P.C. Is despicable and cannot be legally supported as if has got effect of depriving the accused of his valuable right conferred upon him under 1st proviso to section 162(1), Cr.P.C. A reference to section 265(c), Cr.P.C. Also have no manner of doubt that the accused is entitled to be supplied with copies of statements of all the witnesses recorded under sections 161 and 164, Cr.P.C..
In the instant case the copies of the statement of Pervaiz Ahmed (P.W. 11) were in fact supplied to the accused under the last mentioned section. This statement, though recorded in the form of questions and answers, shall be treated to be a statement recorded under section 161, Cr.P.C. As the prosecution has itself treated it so by supplying a copy of it to the accused. The mode and manner of contradicting a P.W. With his statement made before the police officer under section 161, Cr.P.C. Is provided under Article 140 of Qanun-e-Shahadat Order, 1984 (section 145 of the erstwhile Evidence Act, 1872). It is clear from the two precedents of this Court, cited by the learned counsel for the petitioner viz. The State v. Gaman Khan (supra) and Nasrullah's case (supra). These reported cases fully support the view point of the defence/petitioner.
6. This revision petition is, therefore, accepted and the impugned order is set aside. The learned trial Court is directed to permit the learned counsel for the petitioner herein to cross-examine P.W. 11 with respect of the statement of this witness recorded by the police in the manner detailed above.