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Criminal Revision No. 376 of 1968, decided on 17th March 1969.

S. 251‑A read with Ss. 161 & 190‑Cognizance of offence taken not upon Police report but upon evidence of witnesses‑Accused, in circumstance not entitled to receive copies of statements of prosecution witnesses recorded by Police under S. 161.

Falak Sher v. State P L D 1967 S C 425 distinguished.

Abdus Sattar Molla v. Crown P L D 1953 F C 145 and Muhammad Nawaz Khan v. Noor Muhammad P L D 1967 Lah. 176 ref.

, S. 251‑A read wily S. 161‑Copies of statements of prosecution witnesses already with counsel of accused in connection with defence of co‑accused it same case and such counsel examining same witnesses‑Accused, held, cannot in circumstances be said to have been prejudiced by non‑supply of copies of statements recorded by Police under S. 161.

Ahdur Rahman v. State P L D 1968 Lah. 514 ref.

Mst. Sadan v. State P L D 1965 B J 12 distinguished.

Ch. Azam Ali for Petitioners.

Wasim Sajjad for the State.

Date of hearing : 4th March 1969.

Mst. Fatimah, mother of Muhammad Hanif (P. W. 1), who was a widow, married Muhammad Shafi accused in 1950. Thereafter due to disagreement between them Mst. Fatimah used to live off and on with her son, Muhammad Hanif (P. W. 1) and his brother, Abdul Aziz (P. W. 5). About two months prior to the occurrence under consideration, Mst. Fatimah was driven out by Muhammad Shafi and his brothers, Umar Din and Hameed accused, in this case and she started living with Muhammad Hanif (P. W. 1) and Abdul Aziz (P. W. 5) Muhammad Shafi wanted to divorce her, but her sons were opposed to it. This led to a dispute between the parties. Muhammad Shafi accused submitted an application against Abdul Aziz P. W. as he apprehended danger from him. Thereafter on 9th October 1965, Muhammad Hanif and Abdul Aziz P. Ws. on one side and Muhammad Shafi and Khurshid accused on the other were proceeded against under section 179/151, Cr. P. C. on 11th October 1965, in the morning Muhammad Hanif (P. W. 1) was ploughing his field when his brother Abdul Aziz (P. W. 5) came there with a huqqa. At that time Muhammad Shafi‑Umar Din, Hameed, Faiz Muhammad, Khurshid and Aziz, accused, came there armed with lathis. They launched an attack and inflicted injuries on Abdul Aziz P. W. and when Muhammad Hanif P. W. went to rescue him, he was also given a beat ing. Besides Muhammad Hafif and Abdul Aziz P. Ws. the occurrence was witnessed by Muhammad Hanif son of Maqbool (P. W. 2) and Umar Din (P. W. 3) and one Wazir. The accused thereafter went away Abdul Aziz P. W. was taken to Civil Hospital, Lodhran, where he was medically examined by Doctor Mukhtar Hamid Shah (C. W. 1). After that Muhammad Hanif son of Qutab Din (P. W. 1) lodged report with the police, which was registered by Moharrir Head Constable Inayat Ali. The case was partly investigated by Assistant Sub‑Inspector Ali Nawaz (P. W. 4) who after securing blood‑stained earth from the scene of offence, arrested all the accused persons. He also recovered dandas etc., from them. During the investigation he placed Khurshid and Aziz accused in column No. 2 as he found them to be innocent and submitted the challan of others in the trial Court. The trial Magistrate recorded the statements of Muhammad Hanif (P. W. 1), Muhammad Hanif (P. W. 2.) and Umar Din (P. W. 3) on 7th March 1966. From their evidence he found that Aziz and Khurshid, who had been placed in column No. 2 of the challan, bad also taken part in assaulting Abdul Aziz and Muhammad Hanif P. Ws. Hence both of them were summoned vide his order dated the 7th March 1966 and non‑bailable warrants were issued against them. They appeared on 21st March 1966, and made statements that they wanted the same Court to try the case. The accused were then tried afresh. Subsequently they all were convicted under section 307, P. P. C. and each of them was sentenced to rigorous impri sonment for two years, with a fine of Rs. 50.00 or in default to further undergo rigorous imprisonment for two months. They were convicted under section 148, P. P. C. and sentenced to a fine of Rs. 100.00 each or in default to undergo rigorous imprisonment for three months each. On appeal the learned Additional Sessions Judge after the perusal of the record, found that the prosecution case was closed on 17th July 1966 and defence was closed on 21st August 1967 while on 14th February 1967 the learned trial Magistrate examined Doctor Mukhtar Hamid Shah as (C. W. 1), who had examined Abdul Aziz P. W. The learned trial Magistrate then did not re-examine the accused and thereby violated the mandatory provi sions of section 342, Cr. P. C. The learned Additional Sessions Judge accordingly set aside the conviction and sentences of the accused and remanded the case back with a direction that the accused should be retried from the stage when the illegality had been committed and that the accused should be further examined under section 342, Cr. P.C. and be given an opportunity to examine additional evidence in defence, if they so desired. The record and the proceedings of the case were sent to the District Magistrate, with a direction to depute a Magistrate other than the Magistrate, who had previously tried them, to try the case. Khurshid and Aziz petitioners have now filed a revision praying that under section 251‑A, Cr. P. C. they were entitled to receive copies of statements of the prosecution witnesses recorded by the police under section 161, Cr. P. C. and since they were not supplied, the whole of the trial was vitiated and that a de novo trial should be ordered, in which all the accused be tried afresh and not from the stage as directed by the learned Additional Sessions Judge.

2. The learned counsel for the petitioners contended that the trial Magistrate when he summoned the petitioners, had taken cognizance of the offence under section 190 (1)(b), Cr. P. C. and as such they were entitled to receive copies of statements of all the witnesses recorded by the police under section 161, Cr. P. C. by virtue of section 251‑A, Cr. P. C., and since these provisions were not complied with, the whole trial was vitiated.

3. The learned counsel for the State, on the other hand, contended that the Magistrate had taken cognizance under sec tion 190 (1)(c), Cr. P. C. and as such the provisions of sec tion 251‑A, Cr. P. C. entitling them to receive copies of the state ments of the witnesses recorded by the police under section 161, Cr. P. C. were not applicable. He also contended that even if it be assumed for the sake of argument that section 251‑A, Cr. P. C. was applicable, its non‑compliance did not vitiate the trial because according to him its provisions were directory and not mandatory.

4. In support of his arguments the learned counsel for the peti tioner relied on the case Falak Sher v. State (P L D 1967 S C 425). In that case four persons, namely, Muhammad Sharif, Muhammad Nawaz, Falak Sher and Abbas were challaned under section 302/34, P. P. C. for the murder of one Ghulam Muhammad and under section 307/34, P. P. C. for the attempted murder of one Sawal. After the investigation the police found that there was no evidence against Falak Sher and Abbas even though they were mentioned in the first information report. The police accordingly placed them in column No. 2 of the challan. The Magistrate after the perusal of the record and the police report took cognizance of the case against all the four accused including Falak Sher and Abbas. It was held that the Magistrate had taken cognizance under clause (b) of section 190 (1), Cr. P. C.

5. The learned counsel for the State, on the other hand, contended that in the present case the Magistrate had taken cognizance of the offence against the petitioners after record ing the evidence of three witnesses and not after the perusal of the report and the police record as it was done in the case cited above and, therefore, he acted under section 190(1) (c), Cr. P. C. In support of his contention he relied on the case Abdus Sattar Molla v. Crown (P L D 1953 F C 145) in which Cornelius, J. observed:‑

"On the facts stated above, the argument advanced on behalf of the appellant is that in directing the issue of a warrant of arrest against him, after the Police officer had excluded him from the case and the Sub‑Divisional Magistrate who had taken cognizance of the case on the 13th of October 1949, had also not chosen to proceed against Abdus Sattar, but on the other hand appears to have discharged him from his bail bond (as is indicated by the necessity for issue of warrant for his arrest) the trial Magistrate took fresh cognizance of the offence against him on the basis of information derived from the evidence of two witnesses examined by him. Such cognizance, for the initiation of judicial proceedings, could only have been taken by a duly empowered Magistrate under section 190, subsection (1) (c) since it could not be said to have been taken on the basis of the police report, and it was certainly not taken upon complaint."

This authority was relied upon by Sardar Muhammad Iqbal, J. in case Muhammad Nawaz Khan v. Noon Muhammad (P L D 1967 Lah. 176).

6. In the authority cited above by the learned counsel for the petitioner the Magistrate bad taken cognizance only after the perusal of the record and the police report and not after recording the evidence of the prosecution witnesses as in the present case and, therefore, that ruling will not apply.

7. Now the point which requires consideration is as to whether the provisions of section 251 (a), Cr. P. C. are applicable in the present case. The said section reads as follows:‑

"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 place of occurrence, shall be supplied to the accused 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 state ment shall be excluded from the copy of the statement furnished to the accused."

This section is not applicable because the cognizance had not been taken against the petitioner upon a police report, but upon the evidence of the three witnesses and as such the petitioners are not entitled to receive copies of statements of the prosecu tion witnesses recorded by the police under section 161, Cr. P. C. The learned counsel for the State also argued that even if it be assumed for the sake of arguments that the provisions of this section are applicable its non‑compliance will not have the effect of vitiating proceedings or the trial unless it is shown that the petitioners have been prejudiced by that omission. He placed reliance on the case Abdur Rehman v. State (P L D 1968 Lah. 514) in which it was 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 sec tion 251‑A of the Code."

In the present case I find that the same counsel, who was appearing on behalf of the co‑accused, also appeared on behalf of the two petitioners when they were summoned. The copies of the statements of the witnesses recorded by the police under section 161, Cr. P. C. were already with the counsel and he armed with those statements had cross‑examined the prosecution witnesses and under these circumstances it cannot be said that the two petitioners had been prejudiced. The learned counsel for the petitioners, on the other hand, relied on the case Mst. Sadan v. State (P L D 1965 B J 12) in which it was observed:‑

"The learned counsel for the petitioner has also contended that the petitioner was not supplied with copies of the state ments of the witnesses recorded by the police which is a con travention of section 251‑A of the Code of Criminal Procedure introduced by the Code of Criminal Procedure (West Pakistan) (Amendment) Act, 1964, which came into force on 1st of April 1964. The learned counsel appearing for the State contends that the provision is only directory and not manda tory and relies on the decision of the Supreme Court of India in Narayan Rao v. State of Andhra Pradesh (A I R 1957 S C 737) but the case is still pending in Court, and even if the provision is directory, it is necessary for the Court to comply with it. We, therefore, direct the learned Magistrate to supply copies of the police statements of the witnesses to the petitioner and to afford her an opportunity to cross‑examine them in the light of those statements."

In this ruling the point whether prejudice was caused or not was not considered. In any case this ruling will not apply to the facts of the present case because in that case none of the accused was supplied with copies of the statements of the witnesses recorded by the police at any stage.

8. In the result I find no merit in this revision petition which is hereby dismissed.

Petition dismissed.

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