KHAWAHA MUHAMMAD SHARIF, J.---The petitioners are facing trial in the Court of Additional Sessions Judge at Kasur on charges under sections 302/324/34, P.P.L. In case F.I.R. No, 198 of 1999 dated 25-12-1999 registered at Police Station Ganda Singhwala, Kasur. During pendency of trial, they made an application to the learned trial Court, maintaining therein that they have been supplied copies of statements of witnesses cited in the calendar of the challan Le. Report under section 173 of the Cr.P.C., whereas they were entitled to be supplied copies of statements of all witnesses recorded under section 161 of the Cr.P.C. During the investigation. They requested that they be supplied copies of those witnesses who were examined under section 161, Cr.P.C. By the Investigating Officer and are not being examined as prosecution witnesses. The learned Additional Sessions Judge rejected the application vide order dated 25-4-2002, declining the request of the petitioners on the strength of the judgment of a Division Bench of this Court reported as 2002 PCr.LJ 629 (Ahmad Hassan and 2 others v. The State) hence this revision petition.
2. Before proceeding with the merits of the case, a brief resume may be stated here. The revision petition came up for hearing before a learned Single Bench on 18-7-2002 when the following order was passed:-- "During the course of hearing of this petition it has been brought to my notice that the stand taken by the petitioners in the present petition runs contrary to the judgment delivered by a learned Division Bench of this Court in the case of Ahmad Hassan and 2 others v. The State (2002 PCr.LJ 629) but it has also been pointed out that the said judgment delivered by the learned Division Bench had not taken into consideration the law already declared by this Court as well as by the Hon'ble Supreme Court of Pakistan on the subject. In these circumstances, it may be in the fitness of things to refer the matter to the Hon'ble Chief Justice for constitution of a larger Bench to hear this petition, if so advised. Let the office obtain the necessary orders in this regard from the Hon'ble Chief Justice and re-list the present petition for hearing accordingly." Accordingly the Hon'ble Chief Justice vide order dated 22-7-2002 referred the matter to a D.B.
Consisting of my learned brother Tassaduq Hussain Jilani arid Asif Saeed Khan Khosa, JJ. The petition came up for hearing before the D.B. And the learned Division Bench on 7-8-2002, referred the matter to the Hon'ble.Chief Justice for constitution of a larger Bench. It was then that this Full Bench was constituted consisting of DB-III and Khawaja Muhammad Sharif, J. On 18-9-2002, the matter was partly heard but in view of importance of the question involved in this petition, that is, to consider whether the view of the D.B. In the case of Ahmad Hassan is correct exposition of law as it restricts the term "witnesses to mean only those witnesses who have been cited in the calendar of witnesses and also the use of the statements only within the meanings of section 145 of the Evidence Act, notice was issued to the learned Advocate-General to appear personally and also to Kb. Sultan Ahmad and Sardar Muhammad Latif Khosa, Advocates as amicus curiae. We may note here with concern that no assistance was rendered by any law officer of the State to the learned Judges of the DB as the State remained unrepresented. The same position has prevailed before us inasmuch as representation of the State was of formal nature. The learned Advocate-General appeared only once and thereafter did not turn up. Again on the last date of hearing, no law officer was present. However, Mr. Bilal Khan, learned Additional Advocate-General entered appearance when we had already announced the judgment.
3. Learned counsel for the petitioners has argued that the exposition of law in the case of Ahmad Hassan is not valid and that the learned Judges of the Division Bench of this. Court while taking note of the precedents referred in their judgment have not considered those judgments and without commenting on the correctness of the reasons given therein expressed a contrary view. It was further argued that the learned Judges of the Division Bench while analyzing the provisions of section 265-C(1)(c) of the Cr.P.C. Have held that the individuals who were examined by the Police during the course of investigation and whose statements had been recorded during the investigation by the Investigating Officer are only persons and become witnesses only if and when they are called for the prosecution at a trial and that the term "witnesses" mentioned in section 265-C(1)(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 had been interrogated during the course of investigation and whose statements might had been recorded by an. Investigating Officer. It was next argued that the learned Judges while interpreting section 265-C(1)(c) of the Cr.P.C. Have been swa yed by the provisions of section 162 of the Cr.P.C. Which directs that statements of witnesses recorded under section 161 could be used by an accused only for the limited purpose of confronting a witness in terms of section 145 of the Evidence Act. According to the learned counsel, in this way the learned Judges of the Division Bench were of the view that section 265-C (1) (c) of the Cr.P.C. Is controlled by its section 162, further treating that its-section 172 envisages confidentiality of case diaries implicit therein was of all other statements.
4. The learned Advocates who addressed the arguments as amicus curie had argued in the same direction in which the learned counsel for the petitioners had argued. They were expressly of the view that copies of all statements of witnesses recorded under section 161 of the Cr.P.C. Should be supplied to the petitioners as of right in terms of its section 265-C(1)(c). Kh. Sultan Ahmad, the learned Senior Advocate submitted that section 162 of the Cr.P.C. Has been impliedly repealed by the provisions of section 265-C(1)(c). He in a very able manner made comparison of sections 161 and 162 with the provisions of section 265-C(1)(c) of the Cr.P.C. To say that a part of the provisions of its section 162 which require that accused are to get copies of prosecution witnesses called for evidence by making an application and on obtaining the copies of statements can make their use for limited purpose of section 145 of the Evidence Act i,e, to confront a witness with his previous statement to contradict him. He further pointed out that Article 166 of the Qanun-e-Shahadat, 1984 has repealed the Evidence Act. 1872, but no corresponding amendment has been made in the provisions of section 162 of the Cr.P.C. So as to bring it in conformity with the provisions of,Qanun-e- Shahadat, 1984. The provisions of section 162 of the Cr.P.C. Have been rendered inoperative and ineffective so far as they relate to the supply of copies of statement of called witnesses on application of the accused and to make limited use of confronting the witnesses. While concluding his arguments he made reference to a Report of the Law Reforms Commission made in the years 1967-70, which was in the direction that copies of statements of the prosecution witnesses alone should be supplied to the accused under section 265-C(1)(c) of the Cr.P.C. And did not find favour with the Government, which in its wisdom retained the liberal expression statements of "witnesses in the sense" in which it was previously used in section 251-A of the Cr.P.C. AdvanCing his arguments further he expressed that statements recorded under section 161 of the Cr.P.C. Are public documents within the meanings of Article 85 of the Qanun-e-Shahadat. 1984 and copies thereof can be obtained by an accused by making an application to the Court at the time which suits him to avoid delay in conclusion of the trial. In nutshell, he submitted with vehemence that copies of all statements of witnesses whether intended to be called by the prosecution or not, should be supplied to an accused.
5. Mr. Muhanuriad Latif Khan Khosa, learned Advocate has also in his arguments supported the interpretation that copies of all statements of witnesses recorded under section 161 of the Cr.P.C. Be supplied to an accused as of right seven days before commencement of the trial to enable him to effectively exercise his right of being heard. According to him the right of being heard expressed in the maxim "audi alteram partem" is an indispensable right of an accused and has been so granted and protected by the Constitution. He referred to Article 4 of the Constitution which states that right of a person to be treated in accordance with law and only in accordance with law is an inalienable right of every citizen of Pakistan and of any other person for the time being in Pakistan and that no action detrimental to the life, liberty, reputation and property of a persons shall be taken except in accordance with law. He also referred to Article 10 of the Constitution,which provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice. By referring to these two Articles of the Constitution, learned counsel maintained that it is very much inhering in the right of being heard that an accused should have access to the material including the statements of witnesses recorded under section 161 of the Cr.
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6. During the course of hearing of this petition, Mr. Shabbar Raza Rizvi, an Advocate of this Court made an application that he be also heard in relation to the point raised in the revision petition. He was allowed permission by this Court. He addressed arguments as pro bono publico. His address has been limited and peripheral in nature to the proposition which was directly and substantially the moot point. His main argument has been in the direction that provisions of section 172 of the Cr.P.C., which bars access of an accused to the case diaries maintained by an Investigating Officer in the course of investigation, offends the Constitutional right of being heard. He submitted that section 172 of the Cr.P.C. In this respect is ultra vires the Constitution.
7. By short order dated 12-11-2002 we allowed this petition by holding that the petitioners are entitled as of right to get copies of the statements of all witnesses recorded under section 161 of the Cr.P.C. In term of its section 265-C(1)(c) irrespective of the fact whether they have been cited as witnesses in the calendar attached to the challan or not. The reasons which persuaded us to respectfully disagree with the reasons appearing in the case reported as 2002 Pakistan Criminal Law Journal 629 (Ahmad Hassan and 2 others v. The State) are given in the succeeding paragraphs.
8. Sections 160 and 161 of the Cr.P.C. Empower a police officer making investigation to require the attendance of a person who appears to be acquainted with the circumstances of the case placing a duty on such person to attend when required and answer all questions to be put to him other than the questions, the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture and the Police Officer may reduce into writing any such statement and if he does so, he shall make separate record of the statement. Of each such person whose statement he recorded. Section 162 of the Cr.P.C. Gives permission to an accused to get copy of the statement of any such person in case the prosecution calls such person as witness and use that statement to contradict him as provided in section 145 of the Evidence Act. Section 145 of the Evidence Act provides that a witness may be cross-examined as to his previous statement without such writing being shown to him and if it is intended to contradict him, his attention must be drawn to those portions of his statement which are to be used for the purpose of contradiction before such statement is proved.Sections 161 and 162 of the Cr.P.C. Referred to above, existed on the Statute Book in 1947 when the laws were adapted on the creation of Pakistan. Criminal Procedure Code had been so arranged that it categorized the trial of cases into following classes:--
(1) Cases triable by the Court of Session or High Court.
(2) Cases triable as warrant cases.
(3) Cases triable as summons cases.
(4) Cases triable summarily. For each class of the cases separate procedure for trial had been given.
9. Section 251-A of the Cr.P.C. Was introduced in the Criminal Procedure Code by Act VII of 1964. By this section it was provided that in cases triable as warrant cases copies of statements of all witnesses recorded by the police under its section 161 and of the Inspection Note recorded by the Investigating Officer on his first visit to the place of occurrence shall be supplied to the accused seven days before commencement of the trial free of cost.
' Provided that if any part of the statements recorded under section 161 of the Cr.P.C. Is such that its disclosure to the accused would be inexpedient in the public interest, such part of the statement shall be excluded from the copies of the statement furnished to the accused. This section ,was in addition to the provisions of its section 162 and served as exception to the restriction placed by it on the use of the statement of a witness recorded under its section 161. The point whether copies of the statements of witnesses who have been examined by the police and has not been cited as prosecution witness, are to be supplied to the accused as of right in terms of section 251-A, of the Cr.P.C. Was considered by this Court in the case of "Caman Khan and others v. The State" PLD 1966 (W.P) BJ 30. It was held that accused was entitled to get copies of statements not only of prosecution witnesses, but of all v. Witnesses and if the intention of the Legislature had been to supply the accused only with "the copies of the statements of the witnesses to be produced by the prosecution during the trial, it would not have made by way of express amendment any such provision because it was already so provided in the Code of Criminal Procedure and the Court under its section 162 is bound to grant to the accused at his request copies of statements made to the Police during the investigation of the persons called for the prosecution in an inquiry or a trial. It was also held that the Legislature would have used instead of all witnesses the words "witnesses called for prosecution" as it was used in the proviso. The words "all witnesses" in section 251-A of the Cr.P.C. Could not be taken to mean only witness called for the prosecution and this was also the intention of the Legislature which is manifest from the different provisions of the amending Act.
10. The procedure for cases triable in the Court of Session or in the High Court was contained in Chapters XVIII and XXIII of the Criminal Procedure Code. No such provision like its section 251-A was introduced in the procedure meant for the trial of cases in the Court of Session or in the High Court.
In 1972 the Code of Criminal Procedure was amended by Law Reforms Ordinance, 1972 (Ordinance XII of 1972). Chapter XXI relating to procedure for trial of warrant cases was omitted. The cases except those triable by the Court of Session or the High Court were made triable according to the procedure contained in Chapter XX. In that Chapter section 241-A was introduced. This section was in fact exact reproduction of section 251-A referred above. It was in fact bodily lifted from Chapter XXI and placed in Chapter XX as section 241-A. By the same Ordinance Chapter XVIII and Chapter XXIII which contained procedure for cases triable in the Court of Session or the High Court were also omitted and a new chapter known as Chapter XXII-A was introduced for trial of such cases. For the first time the provisions verbatim of sections 251-A and 241-A of the Cr.P.C. Were introduced in this chapter in the form of section 265-C which included the direction that copies of all statements of witnesses recorded under section 161 of the Cr.P.C. Be supplied to the accused seven days before commencement of the trial. The provisions introduced through section 265-C in the Criminal Procedure Code was considered in the case of Aziz ur Rehman v. The State (PLD 1987 Lahore 245) A learned Judge of this Court took the view that the provisions of section 265-C of the Cr.P.C. Should be construed liberally in the spirit in which they had been enacted. The object of section 265-C was to meet the vacuum created by abolition of commitment proceedings (Chapter XVIII of Cr.P.C.) and to make available to the accused through copies of statements of all the witnesses examined by the Police, all the available evidence which the prosecution had for the enfoldment of the true case before the Court and further that the words "all the witnesses in subsection (1) of section 265- C did not mean prosecution witnesses and copies of statements of witnesses supporting the defence could also be ordered to be delivered to the accused. Considering that the Police statements can also be supplied under section 162, Cr.P.C. At a stage earlier than cross- examination. The said Police Statements can be supplied before the commencement of the trial.
This salutary procedure would be in aid of section 265-C of the Cr.P.C. And would otherwise secure the ends of justice. It was further ruled on the strength of Saif Ullah's case (PLD 1986 SC 226) that section 265-C(1)(c) deserved liberal construction. Similarly, in the case of Nasrullah v. The State (1980 PCr.L.1 5), section 265-C(1)(c), Cr.P.C. Was interpreted to mean that the words "all witnesses" do not mean prosecution witnesses. There are many other judgments to support the view that copies of all statements recorded under section 161 of the Cr.P.C. Of witnesses whether called for prosecution or not shall be supplied to the accused as of right seven days before commencement of the trial. The learned Judges of Division Bench of this Court took note of the following judgments in the case of Ahmad Hassan (2002 PCLU 629):-- PLD 1966 (W.P.) BJ 30, :980 PCr.LI 5, 1985 PCr.LJ 388, PLD 1979 SC 53, PLD 1987 Lahore 245, 1999 PCr.LJ 46, 1998 PCr.LJ 1795. 1998 PCr.0 508, AIR 1957 Madras 508, and AIR 1960 Bombay 476.
With due respect, the rationale of these judgments had not been considered by the learned Judges of the Division Bench. The term "witness" has not been defined to give it any technical sense. Article 3 of the Qanun-eShahadat, 1984 states that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender year, extreme old age disease, whether of body or mind or any other cause of thesame kind provided that a person shall not be competent to testify if he has been convicted by a Court for perjury or giving false evidence and it is provided further that the provisions of the first proviso shall not apply to a person about whom the Court is satisfied that he has repented thereafter and mended his ways and that the Court shall determine the competence of a witness in accordance with the qualification prescribed by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah for a witness and where such witness is not forthcoming, the Court may take the evidence of a witness who may be available. For facility of reference, explanation may be reproduced here:-- "A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them." According to Article 3 of the Qanun-e-Shahadat, 1984, the competency of a person to testify has been explained to mean that there are persons who can make statements as witnesses on a fact.
Article 71 of the said Order explains what is oral evidence. It provides that it is the evidence of a witness who says that he saw a fact or who says that he heard it or who says that he perceived it or of a person who holds an opinion. It is thus clear that the word "witnesses" appearing in section 265-C(1)(c) of the Cr.P.C. Has not been used to convey restricted meanings. The term "person" covers all witnesses who fall in the category of Articles 3 and 71 of the Qanun-e-Shahadat.
1984. During the course of investigation, an officer examines all such persons who from the information given to him or otherwise appear to be acquainted with the circumstances of the case and if the examination of such a person discloses that he had direct or indirect knowledge of the fact regarding which he is being examined, he is to be treated as witness because his testimony is operational. So, the term "person" covers all those persons who are acquainted with the circumstances of a case including all persons who had been examined and were net acquainted with the circumstances of a case, that is, whose testimony is not operational. In brief, it is the category of those persons who being acquainted with the circumstances of a case are to be termed as witnesses. It makes clear that only such persons whose testimony is operational is to be termed as witness and, not those whom the prosecution calls for evidence.
It is pertinent to state here that section 161 of the Cr.P.C. Is independent of its section 172. Section 161 requires an Investigating Officer to record statement of a person who is acquainted with the facts of the case separately and section 172 which is independent, relates to maintenance of case diaries as record of the various stages through which the investigation has passed. It is only the case diaries which are meant to be treated as "privileged" and shall not be made accessible to the accused. It means clearly that the statements recorded under section 161 of the Cr.P.C. Are not privileged even if recorded in the body of the case diaries. Those are public documents within the meaning of Article 49 of the Qanun-eShahadat, 1984 and are per se relevant under its Article 49.
Moreover, the privilege stated in section 17.2 of the Cr.P.C. Is not of absolute nature. The provisions of the Qanun-e-Shahadat, 1984 are independent of the Cr.P.C. An Investigating Officer has to refresh his memory by looking into the case diaries at the time he makes a statement in Court. Article 155 of the Qanune-Shahadat, 1984 provides that a witness, may, while under examination, refresh his memory by referring to arty writing made by himself at the time of the transaction concerning which he is questioned or so soon afterwards that the Court considers it likely that the transaction Was at that time fresh in his memory. The witness may also refer to any such writing made by any other person and read by the witness within the time aforesaid, if when he read it, he knew it to be correct. Whenever a witness may refresh his memory by reference to any document he may with the permission of the Court, refer to a copy of such document provided the Court be satisfied that there is sufficient reason for the non-production of the original. An expert may refresh his memory by reference to professional treatises. Article 156 of the Qanun-e-Shahadat, 1984 is to the effect that a witness may also testify to facts mentioned in any such document as is mentioned in Article
155. Although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document. Article 157 of the Qanun-e-Shahadat, 1984 is to the effect that any writing referred to under the provisions of the two fast preceding Articles must be produced and shown to the adverse party, if he requires it. Such party may, if he pleases, cross-examine the witness thereupon. It is abundantly clear that the privilege referred to in section 172 of the Cr.P.C. Is not of absolute nature and allows the accused to have access to the case diaries to contradict through cross-examination the Investigating Officer. Reliance can be placed on PLD 1992 Lahore 336 in which it has been held that the Investigating Officer is bound to look into the case diaries recorded by him during the investigation of a case. In terms of Article 15 of the Qanun-e-Shahadat, 1984 the Court can force him to look into case diaries to answer correctly the questions put to him in cross-examination. The case diaries can also be used by the Court to trace out the various stages of investigation.
The Qanun-e-Shahadat, 1984 is independent of the provisions of the Cr.P.C. Though their neighborly relationship is very deep, the examination of the witnesses, admissibility or inadmissibility of evidence, production of documents, impeaching the credit of the witnesses, the order in which the witnesses are to be produced, the manner of cross-examination etc. Are the circumstances governed by Qanun-e-Shahadat, 1984. The credit of a witness can be impeached by the evidence of persons who testify that they from their knowledge of the witness, believe him to be unworthy of credit. The accused can if he is in possession of statements of all witnesses, examined by the Police under section 161 of the Cr.P.C. Select persons from amongst them to appear and depose to discredit the witnesses examined by the prosecution. Similarly.The situation may arise where one accused examines a witness in his defence affecting his co-accused.
The argument of Kh. Sultan Ahmad learned amicus curiae that section 265-C(1)(c) of the Cr.P.C.
Has impliedly repealed its section 162 to the extent that provisions of making an application by the accused to get copies of statements of witnesses recorded under section 161 of the Cr.P.C. At a time when the witnesses have been called by the prosecution to make statements in Court and to make use of such copies only to contradict the witnesses within the meaning of section 145 of the Evidence Act, is rebuttable. No corresponding amendment has been made in section 162of the Cr.P.C. So as to bring it in conformity with the provisions of its section 265-C(1)(c). Since the Evidence Act has been repealed by the same Ordinance, that is, Law Reforms Ordinance, 1972 by which section 265-C(1)(c) was introduced in the Cr.P.C. The provisions of section 162 of the Cr.P.C., so far as they are inconsistent with the provisions of section 265-C(1)(c), become ineffective and inoperative and are no more existing on the statute book. It is now only section 265-C(1)(c). Cr.P.C.
Which controls the supply of copies of statements to the accused.
For what has been stated above, we, while respectfully disagreeing with the law declared in the case of Ahmad Hassan etc. v. The State 2002 PCr.0 629.Feel ourselves handicapped to subscribe to the view taken in the judgment. In nutshell, we hold that statements of all witnesses recorded under section 161 of the Cr.P.C. By an Investigating Officer shall be madeavailable to an accused person as of right seven days before the commencement of the trial. Resultantly this petition is accepted, order dated 25-4-2002 passed by the trial Court is set aside with a direction to the trial Court to supply to the petitioners copies of statements of all witnesses, whether cited or not, as envisaged by section 265-C(1)(c), Cr.P.C.