Learned counsel for the petitioner has impugned the order passed by the learned Additional Sessions Judge on 7-12-2000, whereby the learned trial Court had disallowed the petitioner's counsel to confront the accused Abdul Waheed who was appearing under section 340(2), Cr.P.C.
As his own witness in defence with his first version which he stated before police at the time of his arrest.
2. Learned counsel for the petitioner in support of this petition submits that Abdul Waheed respondent was not appearing as accused but he was appearing as a witness and he was deviating from his earlier version which he had stated before the Investigating Officer at the time of his arrest. He further, submits that this method was adopted by him in order to implicate the present petitioner in the instant case and so it was necessary on the part of the learned trial Court to allow the same. He further, submits that section 340(2), Cr.P.C. Came into existence in 1985 while on the other hand section 162, Cr.P.C. Was made the part of the Cr.P.C. In 1878, when section 340(2), Cr.P.C. Was not there. He further, submits that in the interest of justice and fair play and in order to reach at a just conclusion by the learned trial Court petitioner should be granted the right to confront Abdul Waheed with his earlier version before the Investigating Officer. He has relied upon 1990 PCr.LJ page 1677.
3. On the other hand learned counsel for the complainant, submits that there is no mention of word "accused" in the first proviso of section 162, Cr.P.C. He supports the order of the learned Additional Sessions Judge. Learned counsel for respondent No,1 also supports the order of the learned Additional Sessions Judge and defends the same.
4. Learned Additional Advocate-General on the other hand submits that when an accused person while appearing as his own witness under section 340(2), Cr.P.C. States something which is against his co-accused then counsel for that accused should be given a right to confront his first version before the Investigating Officer at the time of trial. He does not support the impugned order passed on 7-12-2000, the relevant part of which is at page 15 of the file and the same is reproduced below:-- ' "The learned counsel for Sarfraz accused states that the witness should be confronted with the first version recorded by the police being a previous statement which can be confronted to the accused who is deposing on oath under section 340(2), Cr.P.C.
' The copy of the first version of the accused was not provided to him under section 265-C, Cr.P.C.
Nor the same can be provided to the accused. Therefore, the accused, now at this stage cannot be confronted with his first version and cannot be taken by surprise. Therefore, this objection is disallowed."
' This is a new point which has been arisen before this Court due to insertion of section 340(2), Cr.P.C. For that purpose I had invited the intention of the learned Additional Advocate-General to appear before this Court so that this controversy be resolved. For the just decision of the case according to my humble opinion section 162, Cr.P.C. Specifically first proviso of section 162, Cr.P.C. Is necessary to be produced hereunder:-- "162. Statement to police not to be signed, use of such statements in evidence.-- (1) No statement made by any person to Police Officer in the course of an investigation under this Chapter shall, if reduced into writing be signed by the person making it; nor shall any such statement on any record thereof whether in a police-diary or otherwise or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: ' Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid the Court shall on the request of the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by section 145 of the Evidence Act, 1872. When any part of such statement is so used, any part thereof may also be used in the re- examination of such witness, but for the purpose orly of explaining any matter referred to in his cross-examination: ' Provided further, that, if the Court is of opinion that any part of any such statement is not relevant to the subject-matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interests, it shall record such opinion (but not the reasons, therefor and shall exclude such part from the copy of the statement furnished to the accused.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of section 32, clause (1) of the Evidence Act, 1872 or to affect the provisions of section 27 of that Act."
' I would also like to refer Article 140 of Qanun-e-Shahadat Order, 1984 which is also reproduced below:-- "140. Cross-examination as to previous statement in writing.-- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
' It may be noted here that Criminal Procedure Code came into existence in 1898 while section 340 sub-clause (2), Cr.P.C. Was introduced through amendment in Criminal Procedure Code in 1985.
According to that section an accused person has been given a right to appear as his own witness in his own defence to rebut the allegation of the prosecution. Now at this stage the position of the respondent No,1 who is also an accused in this case becomes as a witness. He has given the statement on oath. He had also given his first version at the time when he was arrested by the police. Now according to the learned counsel for the petitioner and learned Additional Advocate- General he has deviated from his first version. He has also tried to implicate the present petitioner in this case. Although, a right of cross-examination has been given to the present petitioner. Now during the recording of statement of respondent No,1 when he tried to implicate the petitioner and moreover changed his instance from his first version, then, in my opinion his earlier version should be allowed to be confronted and must come on record before the trial Court for the just decision of the case and first proviso of section 162, Cr.P.C. And then Article 140 of Qanun-e-Shahadat Order, 1984 is relevant in this case and supports the contentions of the learned counsel for the petitioner.
In this view of the matter, I accept this petition and direct the learned Additional Sessions Judge to recall respondent No,1 Abdul Waheed and allow the petitioner through his counsel to confront him with his first version before the police for the just decision of the case. Before that Court should also supply him copy of the first version of respondent No,1 which he had made before the Investigating Officer. With these observations this Criminal Revision stands disposed of.
Revision .