' KHAWAJA MUHAMMAD SAEED,J.---This appeal is directed against an order of the High Court passed on 7-4-2001 in Criminal Revisions Nos.34 and 35 of 2001.
2. The facts relevant for the decision of this appeal briefly stated are that the respondents were initially made answerable in a reference under section 4 of the Ehtesab Act, 1997 before the High Court. After coming into force the Ehtesab Act, 2000 references pending before the High Court were transferred to Ehtesab Court No, 1 . During proceedings before the said Ehtesab Court one Abdul Rashid Chaudhry produced 81 files containing number of documents. These files were exhibited as P.1 to P.81. The respondents herein through separate applications demanded the copies of the documents available in these exhibited files. Ehtesab Court No,1 refused to supply them copies on the ground that the record is spread over 81 files and each file contains hundred of pages.
However, allowed them time to examine the record for preparing their defence. The order of the Ehtesab Court was assailed before the High Court through two separate revision petitions by the contesting respondents. The learned Judge in the High Court allowed these revision petitions and directed the trial Court to supply the copies of documents from the files to the accused- respondents. This judgment has been assailed with the leave of the Court before this Court in the present appeal.
3. Ch. Muhammad lbrahim Zia, Chief Prosecutor Ehtesab Bureau argued that Criminal Procedure Code (hereinafter shall be referred as the Code) has been made applicable for conducting trial under the Ehtesab Ordinance. According to him the provisions of sections 241-A and 265-C of the Code are not in force in Azad Jammu and Kashmir. Therefore, under the provisions of the Code accused-respondents cannot claim the copies of the documents as of right. He argued that the reference against the accused-respondents are pending since 1998 and in these references clear and specific charges have been levelled against them. No step was taken by them for obtaining the copies of the relevant documents by moving application before the Court concerned for this purpose. According to the learned counsel under the Ehtesab Act, procedure contained in any other law or rule cannot be applied for trial as this Act has superseded the provisions of the Code.
The prosecution on account of these reasons, in the wisdom of the learned counsel, cannot be compelled by respondents to provide them copies of the documents tendered against them in evidence by the prosecution. He further argued that copies of the files exhibited in the statement of Abdul Rashid Chaudhry, a witness of the prosecution, cannot be supplied to the defence as these documents do not form part of his statement under section 161, Cr.P.C. According to the learned counsel in Pakistan sections 241-A and 265-C have been added in the Code. Under section 241-A if trial is ,..,nducted by a Magistrate upon the police report he is bound to provide free of costs copies of statements of all the witnesses recorded under sections 161 and 164 alongwith any inspection note reported by lnvestigating Officer on his first visit to the place of occurrence to the accused persons. In the same way under section 265-A if trial is conducted by the Sessions Judge he shall also follow the same procedure. These amendments in Code made in Pakistan have not been adopted by us up to this time, therefore, any other provision similar to these provisions cannot be acted upon. During trial before the Ehtesab Court the answering respondents, therefore, in the wisdom of the learned counsel for the Ehtesab Bureau were not justified in law to demand the copies of the documents tendered against them in evidence free of cost. According to him the respondents should move application before the trial Court for the supply of copies of the documents tendered in evidence against them. According to the learned counsel for the appellant after adopting the Police Act through Resolution No,229, the previous Resolution No,639 adopted on 30-12-1948 is no more in the field, it was, therefore, wrongly relied upon by the High Court.
4. On the other hand Raja Muhammad Hanif Khan the learned counsel for the accused- respondents, argued that under law the trial Court was bound to supply the copies of record from exhibited files to his clients as these have become part of the statement of Abdul Rashid Chaudhry who referred and presented them in the Court during the course of his statement. According to him under section 162 of the Code his clients can use these documents for the purpose of contradiction.
The learned counsel for the respondents further argued that before enacting sections 241-A and 265-C of the Code, through Law Reforms Ordinance (XII of 1972) there was vacuum in the Code and an accused person was not able to know before-hand, the charges levelled against him and what witnesses were going to state against him. Therefore, these provisions were added through amendment in the Code to ensure proper, safe and just trial of accused. After enactment of these provisions in Pakistan accused persons as a matter of right get free of cost copies of the statements of all the prosecution witnesses and other incriminating material against them. In Pakistan now even copies of statements of such witnesses can be obtained as of right who are not cited as witnesses by the prosecution but were engaged in the investigation of the case. Ln Azad Kashmir according to the learned counsel for the respondents these amendments carried in Code, through Law Reforms Ordinance XII of 1972 have not been adopted. While defending the judgment of the High Court, he relied upon rule 2 of the Jammu and Kashmir Police Rules of Old Regime (Adaptation of Laws Resolution, 1948) and argued that under these rules copies of prosecution witnesses are supplied to the accused persons free of cost. According to him his clients as of right are entitled to obtain copies of statements and other record tendered in evidence against them under above-referred rules, as these rules stood adopted in Azad Kashmir.
5. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. Admittedly the amendment made in the Code as in force in Pakistan in the shape of sections 241-A and 256-C have not been adopted in Azad Kashmir, therefore, under these provisions of law the accused-respondents cannot demand the copies of statements of prosecution witnesses and any other document free of cost to them. However, in Azad Kashmir as rightly pointed out by the learned counsel for the accused-respondents the Jammu and Kashmir Police Rules of Old Regine have been adopted through Resolution No,638 on December 30, 1948. Under rule 2 of this Resolution, in cognizable cases the Police Officer while submitting challan is bound to supply the copies of the statements of all the witnesses and other documentary evidence on which the charge is based to the Court so that the same be supplied to the accused persons. The resolution of adoptation alongwith first two rules being relevant are reproduced below:--- "Resolution No,638.---Resolved that the Jammu and Kashmir Police Rules of the Old Regime are adopted as the Azad Kashmir Police Rules and should be deemed to have been framed under the Azad Kashmir Police Act.
Rules of Procedure in criminal case.---(1) Notwithstanding anything contained in any law or enactment the following procedure will be followed by all Criminal Courts except the Court of Sessions.
(2) In cognizable cases, the Police Officer submitting the challan will also submit a charge-sheet against the accused, and as many copies of the statements of the witnesses or documentary evidence on which the charge is based as the number of the accused."
' Arguments of the learned counsel for the appellant that these rules even if enforced stood impliedly repealed after the adoptation of Police Act through Resolution No,279 is misconceived.
Because Resolution No,279 was adopted on the recommendations of the Secretary-Law and Order of the Azad Kashmir Government through Memorandum dated 22-3-1948 vide Resolution No,279 whereas Azad Jammu and Kashmir Police Rules of the Old Regime were adopted in Azad Kashmir on 30-12-1948 through Resolution No,638. The earlier adoptation cannot repeal any law which was enforced through adoptation later on. Through Resolution No,279 the Police Act was adopted alongwith some other laws but the rules framed for carrying out the purposes of Police Act had not been adopted in Azad Kashmir. Ln Azad Kashmir the Azad Jammu and Kashmir Police Rules of the Old Regime have been adopted vide Resolution No,638 on 30-12-1948. These rules are being followed by all Criminal Courts in all cognizable cases as the copies of the statements of the prosecution witnesses are supplied to the accused person to contradict witnesses by drawing their attention to parts of their statements recorded under section 161, Cr.P.C. These rules up to this time have not been repealed nor replaced and substituted by fresh rules, therefore, as rightly held by the High Court, these rules under section 51 of the Azad Jammu and Kashmir lnterim Constitution Act, 1974 have got the force of law. Lt would be appropriate to have a reference of section 51 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 which reads as follows:--- "51. Continuance of existing laws.---Subject to the provisions of this Act, all laws which, immediately before the commencement of this Act, were in force in Azad Jammu and Kashmir shall continue in force until altered, repealed or. Amended by an Act of the appropriate authority.
Explanation.---ln this section--- (a)laws include Ordinances, Orders, Rules, Bye-laws, Regulations and any Notifications and other legal instruments having the force of law; and
(b) in force in relation to any law, means having effect as law whether or not the law has been brought into operation."
' In a case reported as Chief Secretary, Authority/Referring Authority Azad Jammu and Kashmir Government v. Sardar Muhammad Abdul Qayyum Khan PLD 1983 SC (AJ&K) 95, about this provision of Constitution it is laid down:-- "The bare reading of section 51 of the Constitution Act, 1974, would show that under the Explanation
(a) Ordinances, Orders, Rules, Bye-laws, Regulations, Notifications and other legal instruments which immediately before the commencement of the Constitution Act, 1974, were in force in Azad Jammu and Kashmir, are given protection as laws. We may state here that the charges against the respondent relate to the violation of one or other of these laws. Section 51 of the Constitution Act, 1974, thus, gives sanctity as law to Bye-laws, Rules, Ordinances, etc. Violation of these Rules, Ordinances, etc., therefore, shall be considered for all purposes as the violation of law."
' Again in the same authority at page 142 it is laid down as follows:- "110. This means that the law as stipulated under section 51 of the Constitution Act, 1974, which also includes Ordinances, Notifications, Bye-laws etc., is to be accepted in relation to section 52(c) of the Constitution Act, 1974. Ln our view section 51 of the Constitution Act, 1974, is the express will of the Legislature so far the definition of law is concerned."
' Section 51 of the Azad Jammu and Kashmir lnterim Constitution Act, 1974 is by itself clear enough and this Court in above-referred case has clearly laid down that under the provision of the Azad Jammu and Kashmir lnterim Constitution Act, 1974 all Orders, Rules, Laws, Regulations, Notifications and other legal instruments which before the commencement of the Azad Jammu and Kashmir Interim Constitution Act, 1974 were in force in Azad Jammu and Kashmir have been equated with law. Therefore, the violation of such Ordinances, Orders, Rules, Bye-laws, Regulations, Notifications and other legal instruments shall be the violation of law. These rules in fact are carrying out the purposes of the Code. The procedure contained in the Code is followed in conducting trial under Ehtesab Act. The accused-respondents, therefore, are entitled to claim free of cost copies of the statements of prosecution witnesses and documents tendered in evidence against them. Lt is legal requirement that prosecution should supply them copies of statements of the witnesses alongwith the documents which have been or shall be tendered in evidence against them so that they may know the charges and evidence which shall be produced in support of such charges against them.
We have gone through the statement of Abdul Rashid Chaudhry. He has tendered in evidence some documents out of these files. The respondents can claim free of cost the copies of such documents only from the prosecution. Ln order to meet the allegations if the copies of some other documents are required by them, which have not been tendered in evidence by the prosecution during the course of the evidence of the prosecution witnesses, such copies shall be obtained by them by moving application before the trial Court in ..Accordance with law. The judgment of the High Court in the light of this finding is modified that only such documents shall be supplied to the accused-respondents which are tendered in evidence by the prosecution witnesses out of 81 tiles.
This appeal stands disposed of in the terms indicated above.