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In re : Criminal Appeals Nos. 310 of 1967 and 77 of 1966 (BWP), decided on 26th October 1967.

Criminal Procedure Code (V of 1898), S. 251‑A [as introduced by Code of Criminal Procedure (West Pakistan Amendment) Act (XVII of 1964)]‑Supply of copies to accused‑Provision directory in nature‑Non‑compliance does not vitiate proceedings of trial unless accused prejudiced by omission.

In a criminal appeal before the High Court a preliminary objection was raised by the appellants that inasmuch as the accused were not supplied with copies of statements recorded under section 161, Criminal Procedure Cole, 1898, their trial and convictions were illegal. It was urged that the provision of the newly‑introduced section 251‑A in the Code was mandatory and its non‑compliance vitiates, the trial. The point being of importance, the learned Single Judge, considering it desirable that it should be decided by a larger Bench, formulated for the purpose the following question:

"What is the effect of the non‑compliance with the provisions of section 251‑A on the legality of the proceedings and the trial of an accused person resulting in his conviction "

The Division Bench constituted to answer the above question dealt with it at length and held: that the provisions of section 251‑A of the Code are directory in nature and non‑ compliance with the provisions will not have the effect of vitiating the proceedings or the trial unless it is shown that the case of an accused person has been prejudiced by that omission. Each case will depend on its own circumstances to find out how far the omission injured the interests of the accused. If prejudice has taken place, the Courts will not hesitate to set aside the trial and order the re‑hearing of the case after the accused had been supplied with copies of the document as mentioned in section 251‑A of the Code.

State v. Gaman Khan and others P L D 1966 B J 30 considered.

Mst. Saddan v. The State P L D 1965 B J 12; Narayan Rao v. State of Andhra Pradesh A I R 1957 S C 737 and N. A. Subramania lyer v. King‑Emperor 28 I A 257 ref.

Sh. Nisar Ahmad for Appellant.

M. Bhatti for A.-G. for the State.

Date of hearing: 1st May 1967.

This is an appeal by four convicts, two of whom, namely, Rahman alias Jabbar and Ismail have been convicted under section 392/398, P, P. C. and sentenced to seven years' rigorous imprisonment each. The remaining two, namely, Khushi Muhammad and Abdul Ghani have been convicted under section 392, P. P. C. and sentenced to four years' rigorous imprisonment each and a fine of Rs. 200.00 or in default to undergo six months' further rigorous imprisonment.

2. A preliminary objection has been raised by the learned counsel appearing for the appellants about the validity of the trial, which is this. Section 251‑A which was introduced in the Criminal Procedure Code by Act XVII of 1964 requires that copies of the statements of all the witnesses recorded by the police under 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 the commencement of the trial free of costs in all cases instituted upon police report, except those tried summarily. The proviso to this section, however, permits the exclusion from the copies to be supplied to the accused of any part of a statement recorded under section 161 if its disclosure to the accused is inexpedient in the public interest. The learned counsel for the appellants has produced a judgment of his Lordship Mr. Justice Sardar Muhammad Iqbal in case State v. Gaman Khan and others (PLD1966BJ30) in which it was held that copies must be supplied to the accused persons in all cases except those summarily tried, and the learned counsel for the appellants seems to draw a conclusion from this, which is not expressly stated in the judgment, that the failure of compliance with this requirement of section 251‑A, which is mandatory in character, vitiates the trial. I have also been referred to a judgment of this Court, which is a Division Bench case, reported as Mst. Saddan v. The State (PLD1965BJ12) in which the point as to the effect of the non‑supply of copies was argued. This case was still pending trial and their Lordships directed the supply of the copies which they thought to be necessary even if the provisions of section 251‑A were held to be directory in nature and not mandatory. In this judgment a decision of the Supreme Court of India reported as Narayan Rao v. State of Andhra Pradesh (AIR 1957 SC 737) was referred to, in which on the interpretation of an analogous provisions contained in sections 173 (4) and 207‑A (3), which were added to the Indian Criminal Procedure Code in 1955 in order to simplify the commitment proceedings preceding the trial of accused persons by a Court of Session, it was held that the provisions, aforesaid, although their compliance is required by the word "shall", yet they are not mandatory and their non‑compliance does not vitiate the trial.

3. The introduction of section 251‑A in the Pakistan Criminal Procedure and the complementary Amendment of section 256 and 257 of the same Code strike a very important departure from the mode of trial as envisaged previously, abridging the rights of an accused person to cross‑examine the prosecution witnesses from three stages to one. The intention of the Legislature prima facie was that whereas the procedure be simplified to avoid the delay in the trial of the cases caused by the repeated cross‑examination of the prosecution witnesses, by the defence first at the time of his original examination before the charge, then after the charge, and then before he enters upon his defence, the accused person should in compensation have the prosecution cards against him fully laid on the table before the trial starts, by knowing before hand what the prosecution witnesses had said against him during the police investiga tion so that he is able effectively to cross‑examine the witnesses at one session. If the provisions of section 251‑A are held to be directory in that context, it is doubtful if the intention of the Legislature in protecting the interest of the accused person is carried out. However, as the point is of great importance which affects the trial of cases held all over the Province every day, and it lacks judicial unanimity. I consider it desirable that this question be decided by a larger Bench to be nominated by my Lord the Chief Justice as early as possible.

Mian Hamiduddin for Appellant.

Mufti Nazar Muhammad for the State.

Dates of hearing: 9th and 10th October 1967.

This is to be read with the order of reference made by me on the 1st of May 1967. The precise question raised in the reference may be formulated thus:

"What is the effect of the non‑compliance with the provisions of section 251‑A on the legality of the proceedings and the trial of an accused person resulting in his conviction

Section 251‑A was added to the Criminal Procedure Code on the 1st of April 1964 by Act XVII of 1964, Code of Criminal Procedure (West Pakistan Amendment) Act, 1964. It reads as follows:‑--

251‑A. Supply of copies of statement of section 161 to the accused‑

In all cases instituted upon police report, except those tried summarily, copies of statements of all witnesses recorded by the police under section 161 and of the inspection note recorded by an investigation officer on his first visit to the accused place of occurrence shall be supplied to the seven days before the commencement of the trial free of cost:

Provided that if any part of a statement recorded under section 161 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 copy of the statement furnished to the accused."

By the same Amending Act, Amendments to sections 256 and 257 of the Criminal Procedure Code, Act V of 1898 (hereinafter described as the Code) were also made, based principally on the recommendations of the Law Commission that had been set up by the President of Pakistan, which were intended to cut down A delays in the trial of criminal cases. As a result of the Amendments of sections 256 and 257 of the Code the right of an accused person for cross‑examining the prosecution witnesses In the trial of a warrant case which was formerly spread over to three different stages, namely, (a) before the charge is framed, (b) after the charge is framed and before the accused is called upon to enter upon his defence, and (c) after the accused enters upon his defence, is reduced to one stage only. He has now to exhaust his cross‑examination on the very first occasion when the witness appears and gives the deposition against him. To compensate for this drastic reduction in that right and to ensure that the accused is not unduly handicapped in his trial, the newly‑added section 251‑A was obviously added to provide protective safeguard for an accused person; so that in cases instituted upon police report, except those tried summarily, he is to be supplied with copies of statements of all witnesses recorded by the Police under section 161 as also a copy of the inspection note recorded by the investigation officer on his first visit to the place of occurrence, seven days before the commencement of the trial, to enable him to prepare his defence. The intention of the Legislature clearly was that since the right of the accused to cross‑examine the prosecution witnesses, which henceforth was to be limited to one opportunity only, he should be pre‑equipped with all the cards that the prosecution may be able to display against him, in order to effectively meet the prosecution case. The section clearly imposes and obligation on the prosecution for the supply of such copies to the accused person and the Magistrates trying the cases have also a duty to take care that the requirements of the law as enacted in section 251‑A are complied with. But the question that has to be answered is what is the result if the copies are not supplied in compliance with section 251‑A of the Code. Will the trial in such a case be rendered wholly ineffective or is it just a curable irregularity In other words, is the provision in question of a mandatory character or merely directory In the latter case, section 537 of the Code will purge the defect in the proceedings and the drastic effect of their total spoilation will be saved unless it is shown that a prejudice has been caused to the accused person.

2. The factual background of the need for the introduction of section 251‑A as already described above, namely, the filing of the vacuum in the right of cross‑examination of the accused created by the whittling of that right by the Amendments to sections 256 and 257, presents a strong basis in favour of the view that it is a mandatory provision and its non‑compliance renders the trial bad, attracting the dictum of their Lordships of Privy Council in the well known case of N. A. Subramania Iyer v. King‑Emperor (28 IA 257 (PC)) that when a trial is conducted in a manner different from that prescribed by the Code, the trial is bad and no question of an irregularity arises. I consider that section 251‑A does provide for a mode of trial inasmuch as it enjoins the supply of certain documents to an accused person before the commencement of a trial by way of a defensive armoury, in that trial, but this character of the provision will not make its infraction an illegality which is beyond cure because f an Amendment that was made in section 537 of the Code simultaneously by the same Amending Act XVII of 1964, saying that "no finding, sentence, or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the charge or mode of trial, including any misjoinder of charges."

3. Can it be held then, that the provisions of section 251‑A contain a mandate by the Legislature enjoining absolute sanctity so that failure to abide by it will destroy the entire trial, regardless of whether or not any prejudice has been caused to the accused person I am of the view that the Legislature did not intend such a devastating result. if the provision is to be held to be mandatory, every part of it must be so, including the period of clear seven days before which the copies of the documents mentioned in section 251‑A have to be supplied to the accused. Suppose, the copies are supplied, say six or five days before the trial, and an accused person does not make any grievance of that fact, and does, on the contrary, make full use of the documents in cross‑examination of the witnesses, will it then be open to him to say, after his conviction, that it should be set aside as the provisions of section 251‑A were not strictly complied with as the time when he was supplied with the copies fell short of seven days. I should consider that the grievance in such a situation would be absolutely senseless. Again, where there are more than one accused person in a case, each represented by a different counsel, and only he has been supplied with the copies and not the others, as they did not ask for them and the prosecution and the Court had omitted to supply the same to all of them, but nonetheless their counsel have made use of the one copy which was supplied to one of the accused persons and they have cross‑examined the witnesses on that copy, it would, to my mind, be a futile argument for any of the accused persons after his conviction, to say that it must be set aside, because he was not supplied with the copies.

4. There is no doubt that every possible concession has to be extended to an accused person in his defence during his trial and care should be taken that he is not deprived of any legal advantage allowed to him by law, and the Court should, as a matter of obligation, strictly follow the requirements of law in this behalf, but correspondingly, the accused person should also be conscious of his rights and obligations. If an accused person is not given the copies in compliance with section 251‑A and he has also been indifferent in his demand for the same, his conviction will not be set aside merely for that omission, unless it is shown that the omission has prejudiced his case.

5. Section 162 of the Code is still intact, the Proviso to which entitles an accused person to get a copy of a police statement of a prosecution witness when he appears at the trial, to contradict him. If the accused has not had the copies of the police statements before, he can ask for them during the trial as each witness appears against him and be may even at that stage insist on his right to receive the copies of all the documents as mentioned in section 251‑A and ask for time to prepare his defence, which should not be refused. But if he lets go that opportunity also, the inference is obvious that be had no use for those statements and was avoiding the supply of copies merely to lay the foundation for an objection to the validity of the trial on that basis. Even so, it is always open to the appellate Court's who have access to the record including the police statements in a case, to discover whether the omission to supply the copies of the police statements and the inspection note has caused prejudice to an accused person in his defence. Each case will then depend upon its own circumstances to find out how far has the omission injured the interests of the accused. If a prejudice has taken place, the Courts will not hesitate to set B aside the trial and order the rehearing of the case after the accused had been supplied with copies of the documents as mentioned in section 251‑A.

6. The learned counsel for the appellants referred us to a judgment of our learned brother Mr. Justice Sardar Muhammad Iqbal reported in State v. Gaman Khan and others for his contention that the supply of copies to an accused person seven days before the trial is a must and that failure to do so vitiates the trial. I consider that this is not a correct deduction from that judgment. His Lordship in that vase has stressed the legal requirements of section 251‑A for the supply of the copies of the documents mentioned therein to an accused person before his trial, without giving any opinion on the effect of the omission to do so. A judgment of the Supreme Court of India reported as Narayan Rao v. State of Andhra Pradesh may here be referred to with advantage, which involved the interpretation of sections 173 (4) and 207‑A (3), which were added to the Indian Criminal Procedure Code in 1955 enjoining the supply of certain documents including the copies of the statements of the prosecu tion witnesses recorded under subsection (3) of section 161 of the Code to an accused person before the commencement of the inquiry or the trial. While section 173 (4) places this duty on the officer in charge of a police station for supplying the copies mentioned above to an accused person, under section 207‑A (3) and (4) the Magistrate has to satisfy himself at the time of the commencement of the inquiry that the documents referred to in section 173 have been furnished to the accused and if he finds that they have not been furnished he shall cause the same, to be so furnished. It will appear that these provisions are analogous in character to those contained in section 251‑A of our Code as already referred to above. The Supreme Court of India held that non‑compliance with the provisions contained in sections 173(4) and 207‑A (3), which were introduced to simplify the procedure in respect of inquiries leading upto a Sessions trial, and at the same time, to safeguard the interests of accused persons, does not have the result of vitiating the proceedings and the subsequent trial. The word "shall" occurring in both those sections was held to be of a directory nature, the non‑compliance with which was not allowed to have such a far‑reaching effect as to vitiate the entire proceedings, unless it was shown in a particular case, that it had resulted in grave miscarriage of justice.

7. I would, therefore, answer the reference by holding that non‑compliance with the provisions of section 251‑A, which is directory in nature, will not have the effect of vitiating the proceedings of the trial, unless it is shown that the case of an accused person has been prejudiced by that omission. The appeal may be returned to the learned Single Judge. for decision on merits.

K.B.A. Reference answered.

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