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Criminal Revision No. 612 of 1980, decided on 14th October 1980,

‑‑---S 439 read with S 241‑A‑‑Revision (criminal)‑Prejudice, plea of‑Contention that direction under subsection (1) of S. 241‑A, Cr. P. C. as to supply of copy of Inspection Note of Investigating Officer, being mandatory in nature, its non‑observance, resulted in manifest prejudice to accused‑petitioners‑Contention, held, erroneous and ill‑founded‑Principle applicable to such objection, held further, would be to recall witness, supply a copy of Inspection Note to defence counsel and direct him to cross‑examine such witness‑‑Order of de dovo trial set aside in circumstances.

Fait Ahmad v. The State P L D 1960 S C 8 and Zulfikar Ali Bhutto's case P L D 1979 S C 38 rel.

Hassan Ahmad Khan Kanwar for Petitioners.

Rashid Aziz, Addl. A.‑G. with Rafiq Arif for the State.

Date of hearing: 8th October 1980.

This a revision petition filed by Nazir Ahmad and two others, petitioners, against the judgment of an Additional Sessions Judge of Sahiwal, dated 10‑5‑1980 accepting their appeal, setting aside conviction and sentences and remanding the case to the Ilaqa Magistrate for a de novo trial.

2. The brief facts of the case are that Nazir Ahmad, Muhammad Hussain and Faqir Muhammad, petitioners, and one Qadeer (who died during the trial) were tried by Ch. Akbar Ali, Magistrate Section 30, Sahiwal, under section 307/34, P. P. C. for making an attempt on the lives of Bashir and Mst. Hussain Bibi P. Ws. On 21‑8‑1976 the learned trial Magistrate distributed the police statements recorded under section 161, Cr. P. C. to three petitioners. The order of the said date does not disclose that a copy of the inspection note recorded by the Investigating Officer on his first visit to the place of occurrence was supplied to the petitioners. May be it was, but a noting to that effect was inadvertently not made in the order dated 21‑8‑1976; or may be that the said inspection note was not supplied. However, the trial proceeded and ultimately ended in the conviction and sentence of the three petitioners/accused under section 307/34, P. P. C. The petitioners then preferred an appeal before the Sessions, which was heard by a learned Additional Sessions Judge of Sahiwal who on 10‑5‑1980 inter alia held:

"The perusal of the interim order dated 21‑8‑1976 reveals specifically that the learned trial Magistrate did not supply the copy of the inspection note prepared by the I. O. at the spot. The direction provided under law is of mandatory nature as in the absence of the observance of the aforesaid exigency the utter prejudice is manifestly caused to the appellant. They have supported the plea that they were not supplied with the copies of the documents as indicated above and, therefore, have been prejudiced. Under these circumstances I, therefore, accept the appeal and set aside the impugned order accordingly. The case is however remanded to the learned Ilaqa Magistrate for fresh trial according to law."

The petitioners being aggrieved by this order, preferred a revision petition against the same, which is now before me for disposal.

3. The learned counsel for the petitioners, in support of his petition, has submitted that the learned Appellate Judge without first calling for a report from the learned trial Magistrate and the Prosecuting Inspector to find out as to whether in actual fact the copy of the inspection note was delivered to the petitioners on 21‑8‑1976 or not and without alluding to the contents of the inspection note to show what matters therein were relevant and material to the petitioners which, as a result of the non- delivery of the inspection note, had caused prejudice to them in their defence, mechanically held that prejudice had been manifestly caused, and therefore, erroneously accepted the appeal and remanded the case for a fresh trial.

4. The learned counsel for the State does not oppose the petition, but has rather supported it.

5. I have heard the arguments of the learned counsel for the petitioners and the State and have also perused the record. It is true that the order of the learned trial Magistrate dated 21‑8‑1976 does not mention that a copy of .the inspection note prepared by the Investigating Officer on his visit to the spot was delivered to the accused/petitioner; though in the said order there is reference to the fact that copies of the statements of the witnesses recorded by the police under section 161, Cr. P. C. were supplied. The learned Appellate Judge, whilst dealing with the objections of the accused/petitioners should have first called for a report from the learned trial Magistrate and the Prosecuting Inspector to find out as to whether in actual fact a copy of the inspection note recorded by the Investigating Officer on his first visit to the spot was supplied to the accused/ petitioners or not. May be that the learned trial Magistrate or the Investigating Officer may have reported that the said copy was so supplied, in which case the affidavit of the learned Magistrate or the Prosecuting Inspector could have been taken and placed on record. However, even assuming that the copy of the inspection note was not supplied to the accused /petitioners, that by itself does not automatically lead to the inference that prejudice has been caused to the accused/petitioners, as has been held by the learned Appellate Judge. The learned Appellate Judge should have first referred to the material parts of the inspection note, on which prejudice, if any, was claimed by the accused/petitioners, and then have given an opportunity to the Public Prosecutor to rebut the said inferences. May be the Public Prosecutor would have been able to show that notwithstanding the passages referred to, those matters were within knowledge of the accused/petitioners or were otherwise apparent from the statements of the other witnesses supplied to them or that notwith standing the supply of the said inspection note to the accused/petitioners during appeal, their counsel would not have been able to suggest questions in cross‑examination as would have led to the breakdown of the Investigating officer or any other witness on any material part of his or their testimony, in which case the Appellate Judge would not have been able to set aside the conviction on the technical ground taken by him. The Appellate Judge could also have recalled the Investigating Officer, supplied a copy of his inspection note to the counsel for the accused/petitioners and directed him to cross‑examine him or after delivering to the said defence counsel a copy of the inspection note requested him to suggest such questions in cross-examination as could lead to a breakdown of the witness on a material part of his testimony. In Faiz Ahmad v. The State (P L D 1960 S C 8), where the failure by the prosecution to supply a copy of the statement of a witness made before the police to the accused, was considered in the light of what should have been done by the Appellate Court, when hearing such objection in appeal, the Supreme Court suggested that the Appellate Court could have followed any of the following courses:‑

"(a) Ordered a re‑trial, if it found that the irregularity had occasioned a failure of justice.

(b) Excluded the testimony given by the witness at the trial.

(c) Recalled the witness, supplied a copy of his statement to the defence counsel and directed him to cross‑examine him.

(d) Apprised the defence counsel of the contents of the statement and supplied a copy of it to him and if he was unable to suggest that the cross‑examination of the witness, as to an alleged omission or contradiction in the statement, would lead to a breakdown of the witness on a material part of his testimony, ignored the irregularity in not supplying a copy of the statement to the accused at the trial on the principle that the irregularity not having prejudiced the accused or occasioned any failure of justice was of the kind of irregu larities mentioned in section 537, Cr. P. C."

This view was approved by the Supreme Court, when dealing with section 265‑C of the Criminal Procedure Code, in Zulfikar Ali Bhutto's case (P L D 1979 S C 38), Sections 241‑A and 265‑C of the Code are materially parallel in intent; The former applying to trials before Magistrates and the latter to trials before the High Courts and Courts of Session. The courses stated in (b) to (d) as laid down in Faiz Ahmad's case should also have been considered by the Appellate Judge whilst dealing with the objection relating to the violation of subsection (1) of section 241‑A, Cr. P. C. The view of the learned Appellate Judge that the direction provided under the said subsection is of a mandatory nature and that its non‑observance invariably results in manifest prejudice, is erroneous and ill‑founded. In these circumstances, the judgment of learned Additional Sessions Judge requires revision, so that the appeal of the petitioners can be remanded back and the legal objection relating to the non‑supply of the copy of the inspection note can be decided afresh after making a proper inquiry to the matter and applying the correct, legal principles applicable to the subject, as stated above.

6. For the foregoing reasons, this revision petition is accepted and the judgment of the learned Additional Sessions Judge, Sahiwal, dated 10‑5‑198 is set aside. The appeal of the petitioners is now remanded to the learned Additional Sessions Judge, Sahiwal, for re‑hearing in terms of the direction given above.

Petition accepted. Case remanded.

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