Find a Lawyer

Criminal Revision No. 166 of 1984, decided on 10th October, 1984.

‑‑‑Ss.161, 164, 172, 173, 265‑C & 439‑‑Supply of copies to accused‑ Accused, held, entitled to get copies of first information report, police report, statement of all witnesses and inspection note recorded by an investigating officer on his first visit to place of occurrence and recorded by him on recoveries made if any‑‑Statements of witnesses recorded under S.161(3), Criminal Procedure Code, separately or under S.172, Criminal Procedure Code in a boiled form in body of case diary, held further, had to be considered as statement under S. 161, Criminal Procedure Code and must be supplied to accused at least seven days before commencement of trial.

Sarafat v. The Crown P L D 1953 Dacca 10 and Nasarullah v. The State 1980 P Cr. L J 5 ref.

‑‑‑Ss. 161, 164, 172, 173, 265‑C & 439‑‑Statements which in substance and essence statements of witnesses produced in defence during investi gation by accused‑‑Accused, held, entitled to receive copies of such statements.

Z.A. Bhutto v. The State P L D 1979 S C 53 rel.

‑‑‑Ss. 161, 1,64, 172, 173, 265‑C & 439‑‑Witness‑‑Definition‑‑Person who does not claim to be an eye‑witnesses of an occurrence; a person who does not claim to be present at spat and only expresses his opinion for or against guilt of accused, held, could not be considered a witness in criminal trial and it could not be said that he made any statement which could be considered (a statement) in substance and essence a statement under S. 161, Criminal Procedure Code.‑‑[Words and phrases‑‑Witness].

‑‑‑Ss. 173, 265‑C & 439‑‑Report under S. 173, Cr. P.C per se not a legal evidence of facts stated therein‑‑copies of reports/opinion of Police Officer, held, a report under S. 173, Criminal Procedure Code, on basis of which trial Court takes cognizance of offence under S. 190, Cr.P.C‑‑Law, does not contemplate two reports under S. 173, Cr.P.C‑ Police, if decides to hold further investigation even after filing report/ Challan under S. 173, Cr.P.C. then also those reports which are in fact opinions of investigating officers cannot be considered reports under S. 173, Cr.P.C‑‑Such reports cannot be supplied to accused before commencement of trial‑‑Such report at most an opinion of Investi gating Officer not binding on Courts‑‑Court can take cognizance of an offence on a Police report under S.173, Cr.P.C. only once and proceed with trial of case‑‑Subsequent opinion by an investigating officer once Court has taken cognizance of case could not be considered a police report and as such copy of same could not be supplied to accused before commencement of trial‑‑Accused not entitled to ask for and receive copies of opinion of various police officers recorded during investigation in case diary.

Fida Hussain etc. v. The State P L J 1975 Cr. C. 126rel.

‑‑‑Ss. 439 & 265‑C‑‑Revision‑‑Order well‑reasoned, neither illegal nor perverse nor suffering from any material irregularity‑‑Order, held, could not be interfered with in revision.

Zulfiqar Ali v. The State 1983 P Cr. L J 1838 rel.

Dr. Khalid Ranjha for Petitioner.

Miss Agnis Tabassam for A.‑G. for the State.

Date of hearing: 10th October, 1984.

This revision petition under section 439, Cr.P.C. challenges the order of learned Additional Sessions Judge, Sialkot, dated 10‑4‑1984, by which an application under section 265‑C, Cr.P.C. on behalf of the accused was dismissed.

2. Allah Rakha, Muhammad Akbar, Muhammad Ashraf and Nazar Hussain alongwith Muhammad Yaqoob and Mukhtar Ahmad were named in the F.I.R. for the alleged murder of Ali Ahmad. During the investiga tion, Muhammad Yaqoob and Mukhtar Ahmad accused were found innocent and not challaned. The case against Allah Rakha and three others was sent up for trial before the Sessions Court. They were supplied with copies of the F. I. R., police report and previous statements of witnesses under section 161, Cr.P.C. on 28‑11‑1983. After complete challan had been filed, the accused on 14‑3‑1984, were again supplied with the above‑mentioned copies whereafter the case was fixed for 22‑3‑1984, for framing of charge. The accused persons were formally charged under section 302/34, P.P.C. and the case was adjourned for recording of prosecution evidence, to 10‑4‑1984. On that date, an application under section 265‑C, Cr.P.C. was filed on behalf of the accused with a prayer that "they be supplied with copies of statements of witnesses recorded by different Investigating Officers named above alongwith their reports and respective inspection notes". The learned trial Judge vide detailed order dismissed this petition. The present revision was filed on 15‑4‑1984 and was admitted for hearing on 16‑4‑1984. The proceedings before the trial Court were also stayed pending disposal of this petition.

3. In support of this petition, it is contended by the learned counsel for the petitioner that the accused were entitled under section 265-C, Cr.P.C. to receive the copies of the entire evidence collected by the Investigating Officer during investigation whether for or against them; that the accused are entitled to receive all the copies of the statements of witnesses whether recorded separately under subsection (3) of section 161, Cr.P.C. or in a boiled form in the body of the case diary under section 172, Cr.P.C. that if those statements are withheld, the accused will be prejudiced in their defence and that the accused are also entitled to receive copies of the reports of various Police Officers who were conducting investigation from time to time. In support of these sub missions, the learned counsel placed reliance on Sarafat v. The Crown P L D 1953 Dacca 10, Muhammad Abdullah v. S. H .O. P L J 1978 Crl. Cases 398 and Nasarullah v. The State 1980 P Cr. L J 5. It was, therefore, argued that the prosecution should be directed to supply the copies of the previous statements of all the witnesses recorded by the Investigating Officers during investigation alongwith the reports of various Investigating Officers. The learned counsel for the State has opposed this petition.

4. In all cases instituted upon police report, the accused persons are entitled to get copies of various documents at least seven days before the commencement of the trial. The relevant provisions of subsection (1) of section 265‑C, Cr.P.C. are reproduced below:‑

"265‑C.‑‑(l) In all cases instituted upon police report, copies of the following documents shall be supplied free of cost to the accused not later than seven days before the commencement of the trial, namely:‑

(a) the first information report;

(b) the police report;

(c) the statements of all witnesses recorded under sections 161 and 164; and

(d) the inspection note recorded by an investigation officer on his first visit to the place of occurrence and the note recorded by him on recoveries made, if any:

Provided that, if any part of a statement recorded under section 161 or section 164 is such that its disclosure to the accused would be inexpedient in the public interest, such part of the statement shall be excluded from the copy of the statement furnished to the accused."

A perusal of above provisions indicates that the accused persons are entitled to get the copies of the first information report, the police report which obviously is a report under section 173, Cr.P.C., statements of all WITNESSES recorded under sections 161 and 164, Cr.P.C. and the INSPECTION NOTE recorded by an Investigating Officer on his FIRST visit to the place of occurrence and the note recorded by him on recoveries made, if any. There is no denying of the fact that the statements of witnesses recorded under section 161(3), Cr.P.C. separately or under section 172, Cr.P.C. in a boiled form in the body of the case diary, have to be considered as the statements under section 161, Cr.P.C. and must, therefore, be supplied to the accused at least seven days before the commencement of the trial. I have gone through the case diary of this case myself. The first case diary dated 28‑9‑1983 was recorded by Muhammad Akram S.I. After registration of the case, he inspected the spot and recorded the statements of Saleh Muhammad, Ali Ahmad, Boota, Muhammad Bashir and Riasat Ali under section 161, Cr.P.C. The copies of their statements have admittedly been supplied to the accused. The copy of the inspection note has also since been supplied to the accused. On that day, 37 other persons of the village appeared before the Investigating Officer and made a joint one line statement that the accused have acted in a cruel manner and are guilty. No one of these 37 persons claimed to be an eye‑witness. On that very day, a relative of the accused wanted some time to produce the accused and also to produce witnesses in defence. Diary No. 2, dated 29‑9‑1983 was recorded by Faiz Ahmad S.I. On that day, he recorded statements of Muhammad Aslam F.C. and Inayat Ali F.C. under section 161, Cr.P.C. The copies of their statements have also been supplied to the accused. On that day, 34 other persons appeared before him alongwith the eye‑witnesses. These persons only affirmed their statements made by them a day earlier. In para. 11, it is recorded that Allah Ditta rind some others also appeared before the police but they stated that they were not present at the spot. According to para. 12 of this diary, Imam Din only stated that he heard fire but knew nothing about the occurrence. In para. 13 of this diary, 13 more persons also appeared and they jointly stated that they knew nothing about the occurrence. On that very day, diary No. 2‑Alif was recorded by Ahmad Khan, D.S.P. in which it is stated that he had inspected the spot and had also examined the witnesses, who confirmed their earlier statements. He did himself record any statement on that day nor did he record any separate inspection note in the case diary. Diary No. 3, dated 30‑9‑1983 was recorded by Faiz Muhammad S.I. On that day, many persons appeared before him and jointly stated that the accused were innocent. They did not make any detailed statement about the facts of the case or regarding any other matter pertaining to this case. Diary No. 3‑Alif of the same day was recorded by Muhammad Akram S.I. to the effect that he was trying to apprehend the accused. Diary No. 4, dated 1‑10‑1983, No. 5, dated 4‑10‑1983 and No. 6, dated 7‑10‑1983 were written by Faaz Muhammad S.I. but did not record the statement of any witness excepting Babu Muhammad Sadiq who stated that he reached the village next day of the occurrence. Diary No. 7, dated 9‑10‑1983 was recorded by Faiz Muhammad S.I. On that day, 30 persons appeared on behalf of the complainant and 93 persons appeared on behalf of the accused. Thirty persons appearing on behalf of the complainant jointly stated that the accused were guilty and 93 persons appearing on behalf of the accused jointly stated that the accused were innocent. Besides this assertion, no other statement was made by these persons. In para. 3 of this diary, Muhammad Sadiq Lambardar appeared and stated that he had only heard about the occurrence and does not know whether the same was correct or wrong. Faiz Muhammad S.I. recorded the statement of Mst. Sughran and some other females on 9‑10‑1983. They‑ all stated that they only heard fire and did not see any occurrence themselves. Some other persons were also examined on that day but they did not make any detailed statements before the investigating Officer. Diary No. 8, dated 10‑10‑1983 was recorded by Faiz Muhammad S.I. and it indicates the arrest of the four accused now challaned in the case. On that very day, diary No. 8‑Alif was recorded by Ahmad Khan D.S.P. who only stated that the accused were individually interrogated. Diary No. 9, dated 11‑10‑1983 by Muhammad Akram S.I. pertains to the police remand of the accused. Diary No. 10, dated 12‑10‑1983 by Faiz Muhammad S.I. pertains to interrogation of the accused and diary No. 11, dated 13‑10‑1883 by Muhammad Akram S.I. relates to the remand of the accused. He also recorded the statements of Niaz Ahmad H.C., Sardar Khan H.C. and Muhammad Hussain F.C. The copies of their statements have already been supplied to the accused. Diary No. 12, dated 14‑10‑1983 was recorded by Faiz Muhammad S.I. He interrogated the accused. He also recorded the statement of Mukhtar Ahmad in para. No. 7, statement of Ch. Ghulam Haider in para. No. 9, statement of Riaz Ahmad in para. No. 10, statement of Muhammad Yousaf in para. No. 11, statement of Akbar Ali in para. No. 12 and statement of Muhammad Ishaq in para. No. 13. These witnesses deposed about the innocence of Muhammad Yaqoob and Mukhtar Ahmad accused. Some other witnesses were also examined but they did not make any detailed statements for or against the accused. On that very day, Diary No. 12 Alif was recorded by Ahmad Khan D.S.P. who declared Muhammad Yaqoob and Mukhtar Ahmad innocent and directed that they be got discharged. This was accordingly done and as stated above, they were not challaned by the police. The challan was prepared by Faiz Muhammad, S. I. vide Diary No. 13, dated 15‑10‑1983. 1 have examined the rest of the case diary as well which contains only formal proceedings of the Investigating Officers. A few witnesses were examined by the Investigating Officers in those diaries but their statements were only to the effect that the accused were innocent or that the accused were guilty. They did not make detailed statements before the Investigating Officers. The above narration of the facts would indicate that only the statements recorded on 14‑10‑1983 by the Investigating Officer were material and on the basis of their evidence, two accused were found innocent. Their statements were in substance and essence statements of witnesses produced in defence during investigation by the accused and as such, the copies o those statements should have been supplied by the prosecution. The other persons who were examined by the Investigating Officers from time to time, for or against the accused, did not make detailed statements. They did not claim to be eye‑witnesses of the occurrence and their statements cannot be considered in substance and essence the statements of the witnesses. The accused are entitled to only those statements which are in substance and essence the statements of witneses. This view is supported by 2.A. Bhutto v. The State P L D 1979 S C 53. The word "witness" has not been defined in the Code of Criminal Procedure or in the Evidence Act. According to the Law Terms and Phrases (1978 Edition) by Sardar Muhammad Iqbal Khan Moakal, witness is a person who gives evidence in a cause. According to the Concise Oxford Dictionary Fourth Edition, page 1478, witness is a person who "testifies by evidence regarding the state of facts tending to establish the existence, position or state etc. of a particular fact in issue." A person who does not claim to be an eye‑witness of an occurrence, a person who does not claim to be present at the spot and only expresses his opinion for or against the guilt of the accused cannot be considered a witness in a criminal trial. It cannot be said that he made any statement which could be considered a statement in substance and essence a statement under section 161, Cr. P. C.

5. The case of Sarafat relied upon by the learned counsel for the petitioner is not applicable to the facts of the present case. In this case, two witnesses Rajar Bap and Abdul Hussain were cited and examined as prosecution witnesses during the trial. When these two witnesses were being cross‑examined, the learned counsel for the accused requested that he be permitted to have a look at the statements recorded by the Investigating Officer during the investigation. This was not allowed by the trial Court which was held to be an illegality by a Division Bench of the High Court. The facts of the present case are totally different from that case.

6. The case of Muhammad Abdullah relied upon by the learned counsel is also not attracted to the facts of the present case. That was a Constitutional petition in which it was claimed that the accused should be supplied with the copies of the police reports in subsequent investiga tion after the formal challan under section 173, Cr.P.C. had been ‑filed in Court. It was observed by the learned Judge of this Court that "a police report submitted as such is not a legal evidence as found in Fida Hussain etc. v. The State P L J 1975 Cr. C. 126. The Court under the law cannot rely upon it and it is for the Court to decide the matter on the basis of the report produced before it and come to its own conclusion in order to see as to whether any offence is made out or not." This is not the question involved in the present case and as such, the case of Muhammad Abdullah is of no help to the petitioner.

7. So far as the case of Nasarullah is concerned, I have already observed that there can be no two opinions that the accused are entitled to receive all the copies of statements whether recorded under section 161, Cr.P.C. or recorded in the body of the diary under section 172, Cr.P.C. The last point urged by the learned counsel is that the reports opinions of all the Investigating Officers should be supplied to the accused as provided in section 265‑C, Cr.P.C. In clause (d) of subsection (1) of section 265‑C, Cr. P. C., the words used are "the police report". This report is obviously a report under section 173, Cr.P.C. on the basis of which the trial Court takes cognizance of the‑ offence under section 190, Cr.P.C. Thus, the law does not contemplate two reports under section 173, Cr.P.C. If the police decides to hold further investi gation even after filling report/challan under section 173, Cr.P.C., then also those reports which are in fact opinions of the Investigating Officers, cannot be considered reports under section 173, Cr.P.C, Those are only the opinions of the Investigating Officers and as such, cannot be supplied to the accused before the commencement of the trial. A report under section 173, Cr.P.C. is not per se legal evidence of the facts stated therein. It is at the most an opinion of the Investi gating Officer not binding on the Courts. A Court can take cognizance of an offence on a police report under section 173, Cr.P.C. only once and then proceed with the trial of the case according to law. The subsequent opinion by an Investigating Officer after once the Court had taken cognizance of the case cannot be considered a police report and as such, copy of the same cannot be supplied to the accused before commencement of the trial. In this view of the matter, I am of the opinion that the accused persons were not entitled to ask for and receive the opinions of various Police Officers recorded during investiga tion in the case diary. In the instant case, on a perusal of the case diary, I find that there is only one opinion recorded by various Investi gating Officers. This opinion was recorded on 14‑10‑1983 by Ahmad Khan D. S. P. The report under section 173, Cr.P.C. on the basis of which the trial Court took cognizance, is based on this report which has already been supplied to the accused. They were, therefore, not entitled to receive any other reports.

8. So far as the prayer for the supply of copies of various inspection notes recorded by different Investigating Officers is concerned, it may be stated that on a perusal of the case diary, I find that there was only one inspection note, dated 28‑9‑1983 recorded in the first case diary. No other inspection note was recorded by any other Investigating Officer. Even if any such note had been recorded, then also under clause (d) of subsection (1) of section 265‑C, Cr.P.C., the accuse were not entitled to get copies of the inspection notes recorded subse quently by different Investigating Officers. The accused are entitled only to the inspection note recorded by an Investigating Officer on his first visit to the place of occurrence.

9. I have gone through the impugned order recorded by the learned Additional Sessions Judge. It is a well‑reasoned order. I find that this order is neither illegal nor patently perverse nor does it suffer from any material irregularity. In this view of the matter, relying on Zulfiqar Ali v. The State 1983 P Cr. L J 1838, I am of the view that the same cannot be interfered with.

10. In view of the above discussion I find no merits in this petition which is accordingly dismissed.

11. However, I direct that the statements of the witnesses recorded in Diary No.12, dated 14‑10‑1983 in paras. Nos. 7, 9, 10, 11, 12 and 13 be supplied to the accused before the commencement of the trial.

12. The file of this case will be sent back‑ immediately to the learned trial Court. The copies of the statements mentioned above will be supplied to the accused on 3‑11‑1984 and the witnesses will be summoned for evidence in Court on 1‑12‑1984.

M. Y. H. Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.