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Criminal Revision No. 959 of 1968, decided on 22nd January 1969.
S. 251‑A read with S. 161‑Words "all witnesses" in S. 751‑A‑Cannot be taken to mean only witnesses called for prosecution‑Statements of all persons examined by Police in connection ii ith case to be supplied to accused irrespective of fact whether or not such person cited by prosecution as witnesses.
State v. Gaman Khan and others P L D 1966 B J 30 fol.
Ss. 161 & 251‑A‑‑ Staternents made by witnesses before Police during investigation‑ Accused, held, entitled to copies of such statements.
An accused cannot be deprived of the right of having access to statements made by witnesses before the police on the hyper technical ground that the Investigating Officer did not describe them as statements under section 161, Cr. P. C. All statements made before the police during the investigation are recorded under section 161, Criminal Procedure Code and under the law an accused person is entitled to their copies before the trial.
Sarafat v. The Crown P L D 1953 Dacca 10 rel.
Ch. Azam Ali with Abid Ali Buttar for Petitioner:
M. Aslam Chatha for Complainant.
Sh. Nazir Ahmad for the State.
This revision petition arose out of the following circum stances. 1 he petitioner is on; of the accused persons in a case under sections 148, 302/307/456/ 149 of the Pakistan Penal Code. The inquiry was proceeding before Mr. Iftikhar A. Qureshi, Magistrate First Class, Sheikhupura. On 14th of October 1968, the petitioner filed an application making a grievance of the fact that the statements of the witnesses recorded under section 161 of the Cr. P. C. had not been supplied to him. It was prayed that the statements of the witnesses relied upon by the prosecution as well as of other persons recorded by the police may be supplied. The learned Magistrate passed an order on the same day attributing a statement to the prosecuting Sub‑Inspector that all the statements recorded under section 161 of the Cr. P. C. had been supplied to the petitioner. The petitioner was dis satisfied with this order and filed the present revision petition.
2. Ch. Azam Ali who appears for the petitioner has made a two‑fold submission :‑
(i) that the learned Magistrate himself did not go into the fact whether all the statements had been supplied to the petitioner and after attributing a statement to the Prosecuting Sub‑Inspector that the statements of all the witnesses had been supplied to the petitioner, did not give any positive finding on that aspect of the case. It is submitted that in fact the state ments of only 20 prosecution witnesses were supplied to the petitioner and the rest had yet to be supplied, and
(ii) that in view of the language of section 251‑A of Cr. P. C. the petitioner was entitled to the copies of the statements of all the witnesses whether they support the prosecution or were examined at the instance of the accused.
3. The learned counsel in support of the second contention, referred to section 161 of the Cr. P. C. and pointed out that A under this section the police has the power to examine persons "acquainted with the facts and circumstances of the case" and not only those who support the prosecution version. It is sub mitted that if section 251‑A is read with section 161 of the Cr. P. C. it becomes clear that statements of all persons examined by the police in connection with the case are to be supplied irrespective of the fact whether they have or have not been cited by the prosecution as witnesses. In this connection, reference is made to State v. Gaman Khan and others (P L D 1966 B J 30). It was held by Muhammad Iqbal, J. in the precedent case that the words "all witnesses" in section 251‑A cannot be taken to mean only witnesses called for the prosecution. I respectfully agree with the above observation of my learned brother.
4. It is also submitted that while the application on which the impugned order was passed, was being argued, the Prosecuting Sub‑Inspector took the stand that copies of those statements which were not shown to have been recorded under section 161, Cr. P. C. could not be supplied to the accused. It is contended that copies of all statements are to be supplied and it does not matter whether the Investigating Officer did or did not choose to say that he was recording the statements under section 161 of the Cr. P. C. Reliance is placed on Sarafat v. The Crown (P L D 1953 Dacca 10). I do not think that an accused can be deprived of the right of having access to statements made by witnesses before the police on the hyper technical ground that the Investigating Officer did not describe them as statements under section 161, Cr. P. C. All statements made before the police during the investigation are recorded under section 161, Criminal Procedure Code and under the law an accused person is entitled to their copies before the trial.
5. The grievance that the copies of all the prosecution witnesses had not been supplied to the petitioner also appears to be justified. Ch. Azam Ali made a statement at the bar that statements of only 20 out of 35 prosecution witnesses had been supplied. Mr. Muhammad Aslam Chatha, who appeared for the complainant, did not controvert this assertion but stated that the rest of the copies were now ready for delivery to the petitioner.
6. The contentions of the learned counsel for the petitioner prevail, and I hold that the petitioner is entitled to the copies of the statements of all the witnesses whose depositions have been taken down by the police.
Petition accepted.
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