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Criminal Revision No. 222 of 1975, heard on 6th May 1975.

-----‑‑Ss. 356 & 540 read with S. 537‑Evidence, recording of‑Irregularity in, effect of‑Prejudice‑Trial Court recording statements of, prosecution witnesses in English only of dictation but maintaining no vernacular version of such evidence‑Court re‑summoning such witnesses under S. 540, Cr. P. C. to record their statements afresh‑Contention that irregularity, if any in mode of recording evidence, would come under S. 537, Cr. P. C. and re‑examination of witnesses would prejudice accused by affording an opportunity to prosecution to fill in gaps held, correct‑Order set aside.[Evidence].

State v. Muhammad Ali 1972 P Cr. L J 1020 rel.

Muhammad Moin Anwari for Appellant;

Asghar Ali for the State.

Date of bearing 6th May 1975.

This revision petition is directed against the order dated 22‑2‑1975 of the Assistant Commissioner, Nankana, District Sheikhupura.

2. Ch. Khurshid Ahmad petitioner is facing a trial for offences under sections 420, 467, 419, 364 and 468, P. P. C. Evidence of five prosecution witnesses was recorded in English but their statements in vernacular were not recorded. When the case was being argued at the charge stage, Vie trial Court considered it necessary that the statements of the witnesses should have also been recorded in vernacular. he referred the matter to the District Magistrate, who directed the trial Court to re‑examine these five witnesses under section 540, Cr. P.C. and tit;‑it statements should then be recorded both in English and in vernacular. One of the accused objected to this procedure on the ground that it would amount to allowing the prosecution to fill in the gaps of its case because statement; once recoded I should not be allowed to be improved upon. By the impugned order the trial Court ruled out the objection

3. Learned counsel for the petitioner contended that no prejudice to either the prosecution or the accused was caused by not recording the statements of the witnesses in vernacular; because their statements in English were recorded on dictation, by the Court and each statement has been signed by the presiding officer. The irregularity if any in the mode of recording evidence did not vitiate the proceedings in view of the provisions of section 537, Cr. P. C. It was next contended that by re‑examining these five witnesses, it would afford an opportunity to the prosecution to fill in the gaps of its case: because if the witnesses were to improve upon their previous statements, it would seriously prejudice the defence case, and would be a misuse of section 540, Cr. P. C. The evidence as it is did not prejudice A the accused at all add there is no reason why it should cause any prejudice to the prosecution. In this regard, learned counsel for the petitioner relied on State v. Mohammad Ali (1972 P Cr. L J 1020) wherein it has been held that "non‑observance of the provision of section 356, Cr. P. C. not causing prejudice to the accused was merely an irregularity cureable under section 537, Cr. P. C."

4. In this view of the matter, this petition is accepted. Order of the Assistant Commissioner dated 22‑2‑1975, is set aside with a direction that the statements of the five witnesses already recorded in English shall form a part of the evidence of this case and the witnesses should not be re‑summoned simply to get the vernacular statements on record.

Petition accepted.

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