MUHAMMAD ASLAM Versus THE STATE

This petition has been filed against the order dated 20-4-1995 of the learned Additional Sessions Judge, Sheikhupura. Muhammad Aslam is one of the accused in case: F.I.R. No.259/93, offence under section 302/34, P.P.C. P.S. Sadar, Sheikhupura, pending in the Court of the learned Additional Sessions Judge, Sheikhupura. The petitioner alongwith two others applied for the copies of the statements of some witnesses recorded by a D.S.P. on 29-8-1993. The prayer was rejected by the learned Additional Sessions Judge on the ground that the statements of Nazir Ahmad etc. were recorded in the case-diary and that these were not recorded under section 161, Cr.P.C.

2. Learned counsel for the petitioner inter alia submitted that the petitioner and two others are being tried in a murder case. During investigations, Muhammad Hussain, D.S.P., recorded the statements of Nazir Ahmad, Mst. Safia Bibi, Mst. Mumtaz, Rustam Ali and Hamzey Khan. All these statements were recorded under section 161,, Cr.P.C. by the LO., and that it will not make any difference if their statements were recorded separately or in the case diaries. The accused are entitled to get all such statements under section 265-C, Cr.P.C. before the commencement of trial. If they are not provided the copies of these statements, it would cause prejudice to their case.

3. Learned counsel for the State, has frankly conceded the point and submitted that the accused are entitled to all such statements recorded by the 1.0. during the investigation of the case.

4. 1 have heard the learned counsel for the parties and have perused the record. An important law point is involved. Therefore, I propose to discuss the relevant law and the authorities on the subject.

5. Investigation is defined in section 4(L), Cr.P.C. as "investigation" includes under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) which is authorised by a Magistrate in this behalf.

6. Section 161, Cr.P.C. is reproduced as:--

"(1) Any police officer making an investigation under this chapter (or any, police office not below such rank as the Provincial Government 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 questions relating to such case put to him by such officer, other than question the answer 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 statement of each such person whose statements he records."

Section 162, Cr.P.C. further elaborates the recording of statements during the course of investigation and its mode and its use for contradiction under law of evidence. Section 172, Cr.P.C, lays down that a police officer making investigation, shall day by day enter his proceedings in the investigation in a diary setting forth the time, places of his visit and a statement of circumstances acertained through his investigations. Subsection (2) of section 172, Cr.P.C. allows such diaries to be used by the Court not as evidence but in aid of the inquiry or trial. These diaries can be perused for moral satisfaction as held in 1976 SCMR 5o6.

7. Section 265-C, Cr.P.C. is reproduced as:--

"In all cases instituted upon police report, copies of the following documents shall be supplied free of costs to the accused not later than seven days before the commencement of the trial, namely---

(a) the first information report;

(b) the police report;

(c) the statements of all witnesses recorded under sections 161 and 164; and

(d) the inspection note recorded by an investigation officer on his first visit to the place of occurrence and the note recorded by him on recoveries made, if any:

Provided that, if any part of a statement recorded under section 161 or section 164 is such that its disclosure to the accused would be inexpedient in the public interest, such part of the statement shall beexcluded from the copy of the statement furnished to the accused."

18. The learned Additional Sessions Judge relied on 1986 PCr.LJ 1252 had dismissed the petitioner's prayer. I have minutely studied the authority and I am of the view that the rule in the said case was not of general application. In the said case a learned Single Judge at appellate stage kept these statements, 'out of consideration. But the fact remains that the copies of the statements were provided to the accused before the commencement of the trial.

1. The following are some of the relevant authorities on the subject:-

PLD. 1966 B3 30.

1972 PCr.L.J 646.

PLD 1978 Lah. 523

1980 PCr.LJ 338

1986 PCr.LJ 3025

,1992 PCr.LJ 2320

PLD 1979 SC 53,

1985 SCMR 1442.

10. In 1980 PCi.LJ 5, Mr. Justice Rustam S. Sidhwa (learned Judge of the (Lahore High Court, as he then was) considered all the developments in the law land the object of section 265-C, Cr.P.C. vie-a-vie, sections 161, 162, 164 and 172 of the Cr.P.C. Learned Judge observed that copies of the statements of all witnesses, whether supporting prosecution or defence plea or whether made in challan or not, the accused are entitled to receive such copies provided statements were recorded by police under sections 161, 164 and 172, Cr.

The learned Judge also considered numerous authorities of the High Court and the Supreme Court on the subject.

11. The object of section 265-C, Cr.P.C. appears to be to meet the vacuum created by abolition of the commitment proceedings and making available accused, copies of the statements of all witnesses examined by the police. all the available evidence which the prosecution has for the unfolding of the true case before the Court. The word witnesses in clause (c) of subsection () of section 265-C, Cr.P.C. is used in its normal and general sense, meaning the persons, who have knowledge of all facts relevant to the case and whose deposition were recorded by the Police during investigations. The above quoted authorities endorse the said rule. The Supreme Court while examined the statements of two accused recorded in the police diary found that they were "statements falling under section 161, Cr.P.C. as they contained a detailed narrative events touching the case and it was, therefore, held that their statements ought to have been supplied to the accused under section 265-C, Cr.P.C. In the instant case, the statements of these five persons recorded in the police diary also contain the detail of the facts, showing innocence of the three co-accused and the copies thereof should have been delivered to the accused.

12. There is another aspect of the case. The accused being a favor child of the Court, is presumed to be innocent unless proved otherwise enjoys fundamental rights under the Constitution to an equal treatment or protection of law. He is, therefore, entitled to be provided with all the mater collected against him or in his favour during the investigation by Investigating Officer before the commencement of the trial. This is subject the exception:. created under section 162, Cr.P.C.

13. 1, therefore, hold that the petitioner and other accused are entitled to obtain copies of the statements of the aforesaid witnesses. The order of the learned Additional Sessions Judge is set aside. He is directed to supply the copies of the statements of the witnesses, applied for. The revision petition it accepted.

N.H.Q./M-2564/L Revision accepted.