KHALIL-UR-REHMAN RAMDAY, J.-- The petitioners herein are the accused persons of- a case bearing F.I.R. No.352 dated 16.10.1997 of Police Station, Kanganpur of District Kasur which case was registered for the alleged commission of offences punishable under Section 302/148/149 of the P.P.C.
2. It is claimed that the learned counsel defending the accused at the said trial happened to have inspected some file whereupon it had transpired that the Investigating Officer of the said case had recorded the statements of some persons during the course of investigation and the grievance is that the copies of the said statements of the said alleged witnesses had not been supplied to the petitioners in terms of Section 265-C of the Code of Criminal Procedure. The petitioners submitted an application before the learned trial Judge praying therein that the copies of the said statements be given to them in compliance with the above- mentioned provisions of the Cr.P.C, which application was dismissed on 27.5.2000. Hence this petition under Section 435 read with Section 439 of the Cr.P.C.
3. It is contended by the learned counsel for the petitioners that the accused persons facing a trial were entitled to the copies of the statements of all the witnesses, inter alia, recorded under Section 161 of the Cr.P.C. Reliance was placed by the learned counsel on the following judgment:-
1. PLD 1996 W.P. (B.J.) 30
2. 1980 P.Cr.L.J. 5
3. 1985 P.Cr.L.J. 388
5. KLR 1987 1987 Cr.C. 346
6. KLR 1999 Cr.C. 218
7. 1998 Law Notes (Lahore) 868.
8. AIR 1957 Madras 508.
9. PLJ 1998 (Cr. Case) Lahore 1166.
10. AIR 1960 Bombay 476.
4. It is correct that the provisions of Section 265-C of the Cr.P.C, command inter alia that the statements of all witnesses recorded under Section 161 of the Cr.P.C, be supplied, free of cost, to the accused persons, at least 7 days . Before the commencement of the trial. The question which however requires resolution is that who are the persons who have been termed as "WITNESSES" in the said provisions of law.
5. The provisions of the Code of Criminal Procedure Which are relevant for the purpose are reproduced below for convenience and ready reference:- "160. Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station, who from the information given or otherwise, appears to be acquainted with the circumstances of the case; and such person shall attend as so required.
161.-11) Any police officer making an investigation under this Chapter (or any police officer not below such, rank as the (Provincial Govt.) may, by general or special order, prescribe in this behalf, acting on the requisition of such officer may examine orally any "PERSON" supposed to be acquainted with the facts and circumstances of the case.
(2) Such "PERSON" shall be bound to answer all question relating to such case put to him by such officer other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section and if he does so he shall make a separate record of the statements of each such "PERSON" whose statements he records.
162.-(1) No statement made by any "PERSON" to a 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 or 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, refer to such writing and direct that the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may 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 only of explaining any matter referred to in his cross-examination..."
(The emphasis and underlining is mine).
6. It will be noticed from a perusal of the above quoted provisions of Sections 160, 161 and 162 of the Cr.P.C, that the individuals who are orally examined by the Investigating Officer and whose statements are recorded during the course of investigation have been referred to as "PERSONS" in the said provisions of law. It will be further noticed from the provisions of the first Proviso to Sub- section (1) of Section 162 of the said enactment that such persons have been called "WITNESSES"
When they are called for the prosecution at a trial, It, therefore, appears that the individuals who are examined during the course of an investigation and whose statements during the said proceedings are recorded by an Investigating Officer are only "PERSONS" and becomes "W/TNESSES" only if and when they are called for the prosecution at a trial. What thus follows is that the "WITNESSES" mentioned in Section 265-CU )(c) of the Cr.P.C are the persons who are to be called by the prosecution in support of its case at the trial and not all those individuals who were interrogated during the course of an investigation and whose statements might have been recorded by an Investigating Officer.
7. It may be added here that the provisions of Section 162(1) of the Cr.P.C, prohibit a person from signing his statement recorded by a Police Officer during the course of an investigation and the said provisions further prohibit the use, for any purpose, of any such statement or any part of such a statement at any inquiry or trial except to the extent mentioned in the first proviso to the said section 162(1) of the Cr.P.C. The said first Proviso permits use of the said statements only for the purpose of confronting a witness who is put in the witness box by the prosecution at the trial, It is thus clear that the statements of the persons recorded during the course of an investigation are of no use or benefit either to the accused persons or to any one else except for contradicting the prosecution witnesses at the trial.
8. In this view of the matter, supplying of copies of the statements to the accused persons of the persons who are examined during the course of an investigation and who are not produced as prosecution witnesses at a trial-would be an exercise in futility as these statements cannot be used for any purpose whatsoever except the one noticed-above. This situation also supports the conclusion reached by me above because the law cannot command doing of a thing which would be an exercise in futility and which would be of no use to any party to the proceedings. The provisions of Section 172 of the Cr.P.C, envisage confidentiality of the case-diaries of any particular case which is also an indication in the same direction.
9. Having thus examined all aspects of the matter, I hold that the persons who are referred to as "W/TNESSES" in the above mentioned provisions of Section 265-C(1)(c) of the Cr.P.C, are the persons who are called by the prosecution as its "WITNESSES" at a given trial and it is only the copies of the statements of the said persons which are required to be supplied to the accused persons and the persons whose statements had been recorded by an Investigating Officer under Section 161, Cr.P.C, and who are not called by the prosecution as its witnesses at the trial do not fall within the ambit of the said provisions of Section 265-C(1)(c) of the Cr.P.C.
10. In this view of the matter, I find no merit in this petition which is accordingly dismissed.