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Writ Petition No. 3597 of 1985, decided on 8th October, 1985.

‑‑‑Ss. 138 & 145‑‑Criminal Procedure Code (V of 1898), S. 174‑‑Trial Court fixing case for evidence without insisting upon prosecution to produce affidavits of prosecution witnesses and their statements recorded under S. 174, Cr.P.C.‑‑Held, to impeach credit or contradict witnesses, accused had right to cross‑examine them as to their previous statements‑‑Trial Court could insist upon production of relevant record of proceedings containing previous statements of prosecution witnesses‑ Record lost or not available‑‑Witnesses could be cross‑examined as to contents of record‑‑Witnesses not admitting to have made alleged statements, may be contradicted by secondary evidence afterwards.

Ashiq Hussain Malik for Petitioner.

Farooq Bedar Asstt. A.‑G. for Respondents.

Abdul Majid petitioner, who is facing trial under section 302, P.P.C. for allegedly causing death of his wife Mst. Reshman Bibi on 31‑8‑1983, has invoked constitutional jurisdiction of this Court seeking direction to the respondents to place on the judicial file of the case titled "State v. Abdul Majid" pending before the trial Court, the record of the proceedings held under section 174, Cr.P.C. including statements and affidavits of prosecution witnesses.

2. Learned counsel for petitioner submitted that the affidavits of the prosecution witnesses and their statements recorded under section 174, Cr.P.C. were initially attached with the report under section 173, Cr.P.C. submitted for trial in the Court of Additional Sessions Judge, Toba Tek Singh but the prosecution later on mala fidely withheld the aforesaid record. The petitioner moved application to the learned trial Court for summoning the previous statements recorded by the police officer and affidavits so as to confront the witnesses with those statements at the trial. The prosecution did not produce the record of those proceedings and asserted that the same was not traceable. The learned trial Judge did not insist upon the production of the same and fixed the case for evidence.

Learned counsel has contended that under section 145 of the Evidence Act, 1877 (section 140 of the Qanun‑e‑Shahadat, 1984) the petitioner has a right to have the previous statements of the witnesses on the record for confrontation of witnesses.

3. The learned Assistant Advocate‑General did not join issue on the power of the Court to ask for production of the relevant record and the right of the accused /petitioner to use previous statements for confronting the prosecution witnesses at the time of recording their evidence.

The accused person under section 138 of the Evidence Act has a right to cross‑examine the prosecution witnesses. Section 145 of the aforesaid Act confers upon him a right to cross‑examine the witnesses as to their previous statements made by them in writing or reduced in writing if he intends to impeach their credit or contradict them.

In this view of the matter the learned trial Judge can insist upon production of the relevant record of the proceedings containing previous statements of the prosecution witnesses. In case the same are lost or for any other valid reason not available, the witnesses can be cross‑examined as to the contents of the record notwithstanding its non‑production and if the witnesses do not admit to have made the alleged statements they may afterwards be contradicted by secondary, evidence.

4. In the result this petition is accepted with a direction to the respondents to produce the previous statements of the prosecution witnesses recorded under section 174, Cr.P.C. before the trial Court and if the same are lost the trial Court shall proceed with the trial in the light of the observations made above and in accordance with law.

M.A.K. Petition accepted.

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