MUHAMMAD ARSHAD vs THE STATE
This criminal revision petition challenged a trial court order allowing the examination of witnesses in a private complaint case who had not been examined during the preliminary inquiry under Section 202, Code of Criminal Procedure 1898. The core legal question was whether a complainant in a private complaint case can produce witnesses at trial who were neither examined under Section 202, Code of Criminal Procedure 1898, nor had their statements recorded and supplied to the accused as mandated by law. The High Court held that the trial court's order was illegal. The court ruled that in cases instituted upon a private complaint, only those witnesses whose statements were recorded under Section 200 or Section 202, Code of Criminal Procedure 1898, and whose statements were supplied to the accused under Section 265-C(2), Code of Criminal Procedure 1898, are competent to testify at trial. Consequently, witnesses who were not examined during the preliminary inquiry cannot be permitted to testify as prosecution witnesses, as this would violate the mandatory procedural requirements for the supply of statements to the accused.
- Can a witness be examined at trial in a private complaint case if they were not examined during the preliminary inquiry under Section 202, Code of Criminal Procedure 1898?
- Is it mandatory to supply statements of witnesses recorded under Section 202, Code of Criminal Procedure 1898, to the accused before trial?
- Does the failure to record a witness's statement under Section 202, Code of Criminal Procedure 1898, preclude them from testifying as a prosecution witness?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 200, Code of Criminal Procedure 1898
- Section 202, Code of Criminal Procedure 1898
- Section 204, Code of Criminal Procedure 1898
- Section 265-C, Code of Criminal Procedure 1898
- Section 161, Code of Criminal Procedure 1898
ORDER IFTIKHAR HUSSAIN CHAUDHRY, J.- Criminal case FIR No. 311 dated 10.10.1996 under Sections 302/34, PPC was registered at Police Station Shad Bagh, Lahore on the report of Muhammad Sharif,- wherein he alleged that his daughter Mst. Shahnaz was administered poison 'by Mst. Amina Bibi and Muhammad Arshad. The accused, however, were found innocent in the course of investigation. The complainant thereafter filed a private complaint against the accused for commission of offence under Section 302/34, PPC.
2. Muhammad Sharif and Qurban Ali were examined under Section 202, Cr.P.C. And accused were summoned to face trial. The complainant desired examination of Mst. Mumtaz Bibi, Munawar Hussan and Iftikhar-PWs. Ah objection was raised by defence that since copies of the statements of the aforesaid witnesses were not supplied to them, they could not be examined as witnesses in the case. The Trial Court over ruled the objection vide order dated 3.11.2000.
3. Legality of the order was assailed through under consideration revision petition. Notice to complainant was issued. Learned counsel for the parties have been heard.
4. Learned counsel tor the petitioner submitted that the only two persons were examined under Sections 200 and 202, Cr.P.C. And thereafter the accused were summoned to face trial and none other witness was examined under Section 202, Cr.P.C. Nor previous statements made by them were supplied to the accused as was mandated by Section 265-C(2) and the order of the Trial Court was contrary to relevant provisions of law. Learned counsel for the complainant-respondent No. 2 on the other hand supported the impugned order. It was submitted that list of statement of the witnesses which they were to make subsequently were provided with the complaint and necessary documents were supplied to the accused and provisions of Section 265-C, Cr.P.C. Were duly complied with and the witnesses can be examined at the trial since the name were given in the schedule to the complaint tiled by the complainant.
5. Sub-Section 2 of Section 265-C (2), Cr.P.C. Reads as underpin all cases instituted upon a complaint in writing:-
(a) the complainant shall: -
(i) State in the petition or complaint the substance of the accusation, the name of his witnesses and the gist of the evidence which he is likely to adduce at the trial; and-
(ii) within three days of the order of the Court under Section 204 for issue of process to the accused, file in the Court for supply to the accused as many copies of the complaint and any other document which he has file with his complaint as the number of the accused;
(d) copies of the complaint and any other documents which the complainant has filed therewith and the statements under Section 200 or Section 202 shall be supplied free of cost to the accused not later than seven days before the commencement of the Trial.
The perusal of the above provisions of S. 265-C(2) shows that in cases instituted upon the complaint in writing, the statement of the complainant recorded under Section 200, Cr.P.C. And those (if the witnesses recorded under Section- 202, Cr.P.C. Has to be provided to the accused.
Where a person is not examined under Section 202, Cr.P.C. And his statement is not brought on record, he cannot be allowed to appear as prosecution witness at trial of the case. A witness has to be examined under Section 161, Cr.P.C. Or under Section 202, Cr.P.C. And only then he can be examined as a prosecution witness at a subsequent stage. The witnesses which are sought to be examined by the complainant now had not made any statement under Section 202, Cr.P.C. And cannot be permitted to testify at the trial. The impugned order is contrary to law and is set-aside.
6. Muhammad Sharif and Qurban Ali two witnesses are competent to testify at the trial only. The expert or formats witnesses i.e. The Medical Officer etc. May be examined as Court witnesses at the discretion of the Court.