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Criminal Revision No. 20 of 1986, decided on 24th February, 1986.

‑‑--S. 439‑‑Evidence Act (I of 1872), S.145‑Previous statement exhibited during cross‑examination of witness‑‑Statement allegedly recorded after commencement of trial‑‑Allegation controverted‑‑Objection overruled by Additional Sessions Judge in summary and cursory manner‑‑Objection as to admissibility of such statement, held, was of serious nature and required detailed examination‑‑Order or‑Additional Sessions Judge was set aside leaving parties to argue matter before trial Judge at stage of final arguments.

Sardar v. The State P L D 1980 Lah. 40 and Ghulam Hussain v. The State 1980 P Cr. L J 615 ref.

R.A. Awan for Petitioner.

Ch. Ghulam Bari Saleemi for Respondent

Sardar Muhammad Khurshid for the State.

Date of hearing: 18th February, 1986.

This is a revision petition filed by Nazir Ahmad, complainant petitioner, against the order of an Additional Sessions Judge of Lahore dated 7‑12‑1985, permitting the statement Exh.D.J. to be exhibited during the cross‑examination of Nazir Ahmad P.W.3.

2. The case of the petitioner is that after the trial commenced, the accused‑respondents managed to secure the statement of Nazir Ahmad Butt P.W.3, an eye‑witness, before a Magistrate on 13‑10‑1985, under section 164, Cr.P.C. which they got exhibited as Exh.D.J. when cross -examining the said witness on 7‑12‑1985 and which statement should not have been permitted to be admitted or exhibited, as the same was secured during investigation. It is submitted that a statement of a witness recorded by a Magistrate after the injury or trial is not one recorded under section 164, Cr.P.C. and should not have been admitted. In this connection, the learned counsel has cited Sardar v. The State P L D 1980 Lah. 40 and Ghulam Hussain v. The State 1980 P Cr. L J 615.

3. On behalf of the accused‑respondents, it is submitted that the statement was secured before the commencement of the trial which began on 7‑12‑1985, when the charge was framed and, therefore, the statement could be validly exhibited as one under section 164, Cr.P.C. It is further submitted that even assuming that the statement Exh.D.J. is treated as one not admitted under section 164, Cr.P.C., it could be treated as any ordinary previous statement made by the witness in respect of which he could be contradicted during the cross‑examination.

4. I have given my anxious consideration to this case. The learned Additional Sessions Judge has dealt with the arguments of the leaned counsel for the contending parties in a somewhat summary and cursory manner. There is much to be said on both sides regarding the objection raised. The learned trial Judge perhaps was not presented with the detailed arguments by both the learned counsel, which accounts for the summary manner in which the objection has been dealt with. Since the objection is of a serious natures and services detailed examination of the legal contentions raised, I would, in the interest of justice, set aside the order of the learned trial Judge overruling the objection and leave the parties to argue the matter before the trial Judge at the stage of final arguments.

5. For the foregoing reasons, this petition is accepted and the order of the learned Additional Sessions Judge, Lahore, dated 7‑12‑1985 overruling the objection of the D.D.A. to the extent that the statement Exh.D.J. should not form part of the record, is set aside, with the direction that the learned trial Judge will hear arguments on the said objection at the stage of final arguments and decide the matter thereafter.

S.A Petition accepted.

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