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Criminal Miscellaneous Appeal No. 250/Q of 1973, decided on 16th July 1973.
--‑Ss. 251‑A & 162(1)‑Supply of statements of Prosecution witnesses‑" Contemporanea expositio", principle of.‑[Witness].
It will be noticed that the first proviso to subsection (1) of section 162 Cr. P. C. makes it obligatory on the Court to furnish the statements of the prosecution witnesses recorded by the police under section 161, Cr. P. C. on the request of the accused, when that witness takes a stand in the witness‑box. This provision has now become redundant because of the enactment of section 251‑A, Cr. P. C. because as stated in Maxwell on the Interpretation of Statutes (12th Edition), p. 171, if two sections of the same statute are repugnant to each other, the known rule of interpretation is that the last must prevail. This principle which is known as "contemporanea expositio", has also been explained in Diecy's Treatise on Statute Law (6th Edition). Since the amendment of the Code of Criminal Procedure vide Act XVII of 1964, section 251‑A, Cr. P. C. holds the field and the above‑men tioned authorities relating to sections 161 and 162, Cr. P. C. cited by the petitioner's counsel are, therefore, not attracted to the facts of the present case and the petitioner can make no grievance of the fact that the learned Magistrate failed to supply him the copies of the statements of the prosecution witnesses under section 164, Cr. P. C. during the course of their examination at the time. No doubt the accused is entitled to confront a witness with his previous statements which may have been made in the shape of private letters, receipts, entries in registers, depositions in another case or before a Magistrate under section 164, Cr. P. C. but it is for the accused himself to obtain originals or certified copies thereof, prior to the commencement of the trial or to summon the witnesses in possession thereof as defence witnesses. In the present case, the counsel for the petitioner should have inspected the file and applied for the certified copies of the statements in question, after affixing the required court -fee. But he failed to do so and demanded the copies of the statements under section 164, Cr. P. C., m the midst of the inquiry, on the ground that he did not know earlier that the P. Ws. had made any such statements.
------S. 251‑A read with S. 164‑Statements of witnesses under S. 164, Cr. P. C., supply of copy of statement under S. 164 demanded during midst of inquiry and not earlier and also not on application affixed with court‑fee stamp‑Contention that Inquiry Magistrate having refused to supply copes of statements of prosecution witnesses recorded under S. 164, Cr. P. C., accused was denied his right of cross -examining such witnesses on basis of such statements‑Held Devoid of any force.‑[Witness).
Muhammad Ashraf v. State P L D 1968 Lah. 694 ; Faiz Ahmad v. State P L D 1960 S C 8 ; Darog Ali v. Crown P L D 1957 Dacca 334 and Arshed Master v. State P L D 1962 Dacca 205 ref.
-----S. 208‑Commitment proceedings‑Prejudice‑Prosecutor not pro ducing Police Officers who recorded F. I. R., investigated case and took part in investigation‑Accused, held, prejudiced and proceedings vitiated‑De novo proceedings ordered.
State v. Ain Khan P L D 1963 Dacca 119 ; Sardara v. Emperor A I R 1945 Lah. 286 ; Ali Murad v. Emperor A I R 1941 Sind 168 ; Sher Bahadur v. Emperor A I R 1934 Lah. 667 and A. K. M. Peza v. State P L D 1958 Dacca 111 ref.
Muhammad Siddique Chughtai for Petitioner.
Nasim Ahmad Khan for the State.
Date of hearing : 23rd May 1973.
This is an application by Muhammad Aslam son of Muhammad Sharif under section 251‑A, Cr. P. C. for quashment of the commitment order dated 23‑2‑1973 passed against him by Mr. Javed Dastgir Mirza, M, I. C., Sialkot, in a case under section 302, P P. C.
2. The learned counsel for the petitioner has raised two legal contentions in support of his application. The first is that he was not supplied by the learned Inquiry Magistrate with the copies of statements made by the prosecution witnesses under section 164, Cr. P. C. and as such the petitioner was denied the right of cross‑examining the prosecution witnesses on the basis of the contents of those statements. In support of this case he placed reliance on section 251‑A, Cr. P. C. and:‑
(1) Muhammad Ashraf v. State P L D 1968 Lah. 694.
(2) Faiz Ahmad v. State P L D
(3) Darog Ali v. Crown P t. D 1957 Dacca 334.
(4) Arshed Master v. State P L D 1962 Dacca 205.
(5) State v. Ain Khan P L D 1963 Dacca 119.
3. Before discussing the contentions it would be proper to reproduce the exact order of the learned Committing Magistrate, which is said to have deprived the petitioner of his right to cross‑examine the witnesses. It may be mentioned that the petitioner's counsel made a request for being supplied a copy of the statement of Ijaz Ahmad P. W. I recorded under section 161, Cr. P. C. when the witness was being examined in the Court of the Inquiry Magistrate. The Magistrate refused the request. His order reads as follows:‑
"At this stage the learned defence counsel has stated that he has learnt that the P. W. had also made a statement under session 164, Cr. P. C. before Mr. Mir Khurshid‑uz‑zaman, P. C. S., M. I. C., Sialkot which copy be supplied to him in the interest of justice.
Objection.‑Objection is overruled because this is not supported by any of the provisions of Cr. P. C. and the learned defence counsel has conced ed to it."
Section 251‑A, Cr. P. C. on which the petitioner's counsel relied for his contention reads as follows:
"251‑A. 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 investiga tion officer on his first visit to the place of occurrence stall be supplied to the accused seven daps before the commencement of the trial free of costs.
It will be noticed that the statements, the copies of which the Court is required to supply to the accused under this section are those made by the prosecution witnesses under section 161, Cr. P. C. It cannot, therefore be said that the learned Committing Magistrate had contravened the provisions of section 251‑A, Cr. P. C. in refusing to supply hint the copies of the statement of the P. Ws. recorded under section 16i, Cr. P. C. As to the above‑mentioned authorities, relied upon petitioner, it may be mentioned that all of them relate to the infringement of section 162(1), Cr. P. C. which may be reproduced here for facility of reference: (only the first proviso is relevant for the purpose of this case):
"Section 162(1).‑No statement made by any person to a Police Officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed, by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided at any enquiry or trial in respect of any offence under investigation at the time when such statement was made ;
Ist Proviso.‑Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid the Court shall on the request of the accused, refer to such writing and direct that the accused be furnished with a copy thereof, in order that arty part of such statement, if duly proved, may be used to contradict such witness in the manner provided by section 145 of the Evidence Act, 1872 When any part of such statement is so used, any part thereof may also be used in the re‑examination of such witness, but for the purpose only of explaining arty matter referrer to his cross‑examination:
2nd Proviso.
Section 162(2) .
It will be noticed that the first proviso to subsection (1) of section 162 Cr. P. C. makes it obligatory on the Court to furnish the statements of the prosecution witness recorded by the polite under section 161, Cr. P. C. on the request of the accused, when that witness takes a stand in the witness‑box. This provision has now become redundant because of the enactment of section 251‑A, Cr. P. C. because as stated in Maxwell on the Interpretation of Statutes (12th Edition), at page 171, if two sections of the same statute are repugnant to each other, tire known rule of interpretation is that the, last must prevail. This principle which is known as "contemporaries expositto", has also been explained in Diecy's Treatise on Statute Law (6th Edition). Since the amendment of the Code of Criminal Procedure vide' Act XVII of 1964, section 251‑A, Cr. P. C. holds the filed and the above mentioned authorities relating to sections 161 and 162, Cr. P. C. cited by the petitioner's counsel are, therefore, not attracted to the facts of the present case and the petitioner can make no grievance of the fact that the learned Magistrate failed to supply him the copies of the statements of the prosecution witnesses under section 164, Cr. P C. during the case of their examination" at the time. No doubt the accused is entitled to confront a witness with his' previous statements which may have been made in the shape of private letters, receipts, entries in registers, depositions in another case or before a Magistrate under section 164, Cr. P. C. but it is for the accused himself to obtain originals or certified copies thereof, prior to the commencement of the trial or to summon the witnesses in possession thereof as defence witnesses. In the present case, the learned counsel for the petitioner should have inspected the file and applied for the certified copies of the statements in question, after axing the required court‑fee. But he failed to do so and demanded the copies of the statements under section 164, Cr. P. C., in the midst of the inquiry, on the ground that P. Ws. had made any such statements. I am afraid, in view of the above discussion no fault can be found with the impugned order of the Inquiry Magistrate and he cannot of be blamed for the negligence or the omission of the petitioner's counsel before that Court. Finding no force to this contention reject the same.
4. The petitioner's second contention has, however, some force. The counsel contended that although it was a murder case, the prosecution failed to examine the following important prosecution witnesses before the Inquiry Magistrate:
(1) The A. S. I. who had recorded the F. I. R.
(2) The Investigating Officer in the case,
(3) The police constable who had escorted the dead body and kept the, sealed parcels in his custody.
(4) The recovery witnesses.
(5) The witnesses of extra judicial confession.
(6) Muhammad Ilyas the Wajtakkar witness and
(7) The draftsman who prepared the site plan,
No doubt the prosecution is not declared from examining a witness at the trial who was not examined in the Court of the Committing Magistrate, for if that was so, section 540, Cr. P. C. would be rendered useless. This, however does not mean that the non‑production of material witnessed before the Inquiry Magistrate has no effect whatsoever, on the inquiry, because their non‑production may be highly prejudicial to the accused and negate the very purpose of the proceedings under Chapter XVIII, Cr. P. C. One of the objects of these inquiries is that no one should be trim for a serious offence like murder without first ascertaining as to whether or not there is sufficient evidence against him. Another object is teat no person shall be committed for trial without being previously informed of the facts and cir cumstances of the offence imputed to him and without his being given a fair opportunity of meeting them. Refer Sardara v. Emperor (A I R 1945 Lah. 286). The question of non‑production of witnesses before the Inquiry Magistrate was discussed in Ali Murad v. Emperor (A I R 1941 Sind 168 ) and it was held inter alia, that‑
-----And it appears to us undoubted that section 208, Cr. P. C. does not contemplate any reservation or holding back of witnesses in this fashion. Section 208, Cr. P. C. appears to us to contemplate that the prosecution shall place before the Committing Magistrate, through the same witnesses, the case they intend to place before the Sessions Court. The one proceeding is not merely a preliminary or introduction to the proceedings which follow. It is an enquiry to ascertain and record the case which is to be put before the Sessions Court.
Their Lordships also observed that this was not a invariable rule and it could not be said that whenever all the prosecution witnesses were not pro duced before the Inquiry Magistrate, the subsequent trial was necessarily bad and should be quashed. However, wherever it is found that the accused has been prejudiced by the non‑production of a particular witness, the question of quashment of the committal order should be considered. This view was cased on the observations of a Division Bench of the Lahore High Court in Sher Bahadur v. Emperor (A I R 1934 Lah. 667). In this case Mr. Justice Abdul Qadir was pleased to hold (at page 671, Cols. I and 2), after considering a large number .,of authorities, that‑
" .. . ....In my opinion the action of the learned District Magistrate in the case before us, in committing the accused to Sessions without examining all the evidence that the prosecution meant to produce in the case was against provisions of Chapter XVIII, Cr. P. C. and therefore the commitment was bad in law .
It was further held by their Lordships that‑
"As regards the question of prejudice, it is a question of fact in very case, and I have no doubt that in the present case, at least five witnesses, not examined before the Committing Magistrate were witnesses on important and material points and the accused was prejudiced by their non‑production at the proper stage and by want of notice as to the nature of their evidence."
In the same case Mr. Justice Rangi Lal held as follows at page 672, Col. 2:‑
"The conclusion to my mind is irresistible that the Legislature did not contemplate that the prosecution would have any right to produce at the trial any evidence which had not been produced before the Com mitting Magistrate. The Court can, of course, always use its discretion and allow the production of further evidence.
5. Coming to the case in hand, it would be noticed that although some of the witnesses mentioned in Paragraph No. 4 above who were not examined by the prosecution before the Inquiry Magistrate, may not be very important, but the Investigating Officer, at least is an important witness. Refer A. K. M. Reza v. State (P L D 1958 Dacca 111) and failure of the prosecution to examine him can be said to have caused prejudice to the accused inasmuch as it would deprive him of the valuable opportunity of cross‑examining him and demolishing the entire structure of the prosecution case, for it is the Investigating Officer who usually records the F. I. R. and the statement of the different eye‑witnesses as well as takes into possession the various incriminating articles which constitute corroborative evidence. I feel the non‑production of the Police Officers in this case, who recorded the F. I. R. and investigated the case, caused enough prejudice to the petitioner for holding that the inquiry pro ceedings stand vitiated. As a result I hold so and set aside the impugned commitment order. The inquiry under Chapter XVIII of the Cr. P. C. should be made all over again, after recording the statements of all important witnesses.
6. The petition stands disposed of.
Order accordingly.
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