RAFIQ AHMAD Versus SAEED SHAH

ORDER

1. This is a Criminal Revision Application filed under section 435/439, Cr.P.C. directed against an order, dated 28‑9‑1996, passed by learned Vth Additional Sessions Judge, Karachi South, in Sessions Case No.146 of 1995 (State v. Saeed Shah) registered under section 302/34, P.P.C., as amended by Qisas and Diyat Ordinance, as per F.I.R. No.11 of 1995, P.S. City Courts, Karachi, whereby the learned trial Judge at the stage when the P.W. No.6 Investigating Officer Aurangzeb Khan was being examined, ordered for retrial and framed fresh charge and resummoned all the P.Ws.

2. Brief facts of the case are that the incident of this case took place on 18‑2‑1996 at 16‑10 hours at City Courts Police Station, F.I.R. was lodged and during the investigation, statements of P.Ws. were recorded under section 164, Cr.P.C. The case was challaned, the copies as required under section 265, Cr.P.C. were supplied to the accused on 22‑3‑1995. The charge was framed on 30‑5‑1995 to which respondent/accused pleaded not guilty. P.Ws. were summoned. On 2‑7‑1995, the learned counsel for respondent/accused moved an application under section 265(c), Cr.P.C. for supply of 164, Cr.P.C. statement. On 17‑7‑1995 trial Court supplied copies of 164, Cr.P.C. statements to the defence counsel. Thereafter, evidence of prosecution P.Ws. was recorded. On 28‑9‑1996 when P.W. No.6 Investigating Officer was being examined, the trial Court ordered for retrial and framed fresh charge and resummoned all P.Ws. for evidence on the sole ground that the statements under section 164, Cr.P.C. were supplied to the respondent/accused counsel subsequent to the framing of charge.

3. I have heard the learned counsel for the parties and perused the impugned order and Annexures filed with the Revision Application.

4. The main point for consideration in this case is, whether supply of copies of statements recorded under section 164, Cr.P.C. after the framing of charge and before the recording of evidence of the prosecution witness has vitiated the trial proceedings and has caused prejudice to the respondent/accused in the circumstances of the case.

5. In the instant case, F.I.R. was lodged on 18‑2‑1995, copies as required under section 265(c), Cr.P.C. were supplied on 22‑3‑1995 to the respondent/accused, formal charge was framed on 30‑5‑1995. The counsel for respondent/accused moved an application under section 265(c), Cr.P.C. on 2‑7‑1995 for supply of copies of statements recorded under section 164, Cr.P.C. which were supplied on 17‑7‑1995. First prosecution witness ?Zafique Ahmad was examined on 7‑8‑1995 while cross‑examination was made on 14‑9‑1995, P.W. 2 Muhammad Farooq was also examined and cross‑examined on 14‑9‑1995, P.W.3 Ghulam Mukhtiar was examined and cross‑examined on 10‑10‑1995, P.W. 4 Muhammad Gulistan was examined and cross‑examined on 10‑10‑1995 P.W.5 Javed Akhtar was examined and cross‑examined on 28‑9‑1996, when P.W.6 Aurangzeb Khan was being examined on the same day, the trial Court noticed that 164, Cr.P.C. statements were supplied on 17‑7‑1995 .to the counsel for respondent/accused whereas charge was framed on 30th May, 1995, and the defence counsel also objected to place reliance on the statements already recorded on which A.P.P. stated that fresh charge be framed and matter be retried, on which time was sought by counsel for applicant to argue the matter as to the effect on the trial proceedings for not supplying the statements recorded under section 164, Cr.P.C. before the charge was framed.

6. It is admitted position that none of the prosecution witnesses was examined before the statements recorded under section 164, Cr.P.C. were supplied to the respondent/accused. Deposition of P.W.1 Muhammad Rafique Ahmed would show that he had produced 164, Cr.P.C. statement as Exh.6 and he was cross‑examined by learned counsel for the respondent/accused and during the cross‑examination his 164, Cr.P.C. statement was confronted to the witness. During the examination‑in‑chief of P. Ws. 3 and 4 Ghulam Mukhtiar and Muhammad Gulistan respectively, 164, Cr.P.C. statements were produced as Exhs.14 and 16. It is true that framing of a charge is not an automatic process but is to be framed after all the documents and the statements filed by the prosecution are considered by the Court and if the Court is of the opinion that there is a reasonable ground for proceedings with the trial of the accused, it shall frame the charge. In the instant case, charge was framed after perusal of all necessary documents except 164, Cr.P.C. statements of prosecution witnesses. The object behind is that the Court should apply mind to the material collected by the police to find out if the case for proceedings has been made out against the accused. In the instant case, the first charge Exh.2 which was framed before the supply of 164, Cr.P.C. statement is exactly in same terms as was subsequently framed as per Exh.5. This would show that late supply of copies of 164, Cr.P.C. statements did not change the application of mind of the Presiding Officer considering also the fact that the said 164, Cr.P.C, statements were made available to the learned counsel for respondent/accused prior to the recording prosecution evidence who was in a position to make use of the same as provided under Qanun‑e‑Shahadat. It be also pointed out the respondent/accused learned counsel has cross‑examined the prosecution witnesses at length who was armed with all required copies and documents so also 164, Cr.P.C. statements of the witnesses at the time of conducting cross‑examination of the prosecution witnesses, therefore, no prejudice or failure of justice could be inferred and presumed to have occasioned to the respondent/accused. It is not the case where without supply of copies, as required by section 265(c), Cr.P.C. depositions of P.Ws. have been recorded. Recording of evidence of prosecution witnesses commenced after the supply of all copies and documents including 164, Cr.P.C. statements of prosecution witnesses. There is no cavil about the fact that the provisions‑of section 265(c), Cr.P.C. are mandatory in nature but object behind is that the accused should be given copies of the said documents not later than seven days before the commencement of trial so that the accused may not be prejudiced and may be able to put up his case in the cross‑examination as provided under Qanun‑e‑Shahadat. The learned counsel for respondent/accused has placed reliance upon Ghulam Muhammad v. The State 1985 SCMR 1442, The State v. Fazal Muhammad and others 1971 PCr.LJ 264, Mr. Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53 and Umubeyi Christine and another v. The State 1993 PCr.LJ 1606, but the facts of all these cited cases are different and distinguishable to the facts of the instant case. The impugned order has been passed when the last prosecution witness viz. I.O.'s examination‑in‑chief was being conducted, no objection to the examination of five P.Ws. was taken earlier by learned counsel for the respondent/accused considering also the fact that all documents including 164, Cr.P.C. statements were already supplied to the respondent/accused long before the recording of prosecution evidence.

7. Neither prejudice was caused nor failure of justice occasioned nor proceedings of the trial could be said to have been conducted illegality in the circumstances of the case. At the most, in the circumstances of the case, it could be termed to be irregularity curable under section 537, Cr.P.C. The impugned order passed is not legal, has occasioned failure of justice, therefore, same is set aside, consequently, Revision Application is allowed.

8. N.H.Q./R‑23/K Revision petition allowed.