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Criminal Revision No. 34 of 1983, decided on 29th October,1983.

‑‑---‑Ss. 265‑C 161 & 164‑‑Supply of copies of statements of witnesses to accused‑‑Report of Investigation Committee‑‑Copies to be supplied if investigation conducted under Chap. XIV of Criminal Procedure Code and not under executive or administrative order.

‑‑‑Ss. 265‑C(1), 161 & 164‑‑Supply of copies of statements of witnesses to accused‑‑Intention of Legislature‑‑‑ Accused person who entered upon his defence to be supplied with copies of statements of all witnesses recorded by Investigating Agency which conducted investigation under Chap. XIV, Criminal Procedure Code subject to restriction contained in proviso to S.265(1)‑‑Such statements may have been recorded in any form and may favour prosecution or accused‑‑Language of S.265(1), Cr.P.C. being express and unambiguous, it could not be interpreted to mean that words all such witnesses' appearing in S.265(1), Cr.P.C. would be read as all witnesses intended to be produced by prosecution at trial.

P L D 1953 Dacca 10; P L D 1966 BJ 30; 1970 P Cr. L J 735; 1969 P Cr. L J 568; P L D 1979 SC 230; P L D 1982 Lah. 10 and PLD 1983 Lah. 139 ref.

--‑‑Ss. 265‑C, 161 & 164‑‑Statements of witnesses examined by Police officer during course of investigation and recorded in Ziminis or in gist form judicially pronounced as 'boiled statements' either point towards guilt or towards innocence of accused‑‑Accused, held, should be provided with copies of such statements so that accused should not be prejudiced in his defence as it was always in light of evidence and material collected by Investigating Agency that accused could decide upon adopting a particular line of defence.

‑‑‑Ss. 265‑C, 161 & 164‑‑Supply of copies of statement to accused‑‑Court failing to mention names of witnesses whose statements were handed over to accused‑‑Accused categorically stating in his two applications that he was supplied copies of statements of only sixteen witnesses including eye‑witnesses‑‑Statement of accused remaining un-controverted‑‑Natural presumption would be that order of Court regarding supply of copies of statements of witnesses to accused related to these sixteen witnesses including eye‑witnesses‑‑Held, under no circumstances it could be presumed that copies of statements of witnesses who were not mentioned in calendar of witnesses or copies of 'boiled statements' which might have been recorded by Investigating Officer in Ziminis had also been supplied by Court to accused.

‑‑‑Ss. 265‑C, 161 & 164‑‑Supply of copies of statements of witnesses to accused‑‑Trial Court dismissing application of accused to supply copies of statements of all witnesses recorded by Police Officer‑‑Order of Trial Court set aside‑‑Trial Court was directed to supply copies of statements of all witnesses recorded by Police Officer under Chap. XIV, Criminal Procedure Code, whether in detail or in gist form except statement falling within purview of proviso to S.265(1), Criminal Procedure Code.

Dr. Khalid Ranja assisted by Bashir Ahmad Malik for Petitioner.

M. Zahoorul Haq, A.‑G. for the State.

Hidayatullah Khan for the Complainant.

Dates of hearing: 24th, 25th September and 5th October, 1983.

Muhammad Tahir, Turab and Sheikh Muhammad Abdullah Sadiq accused are jointly facing trial in the Court of Additional Sessions Judge II, Peshawar, on charges under section 302/307/120‑B/114/109, P.P.C. and section 13, Arms Ordinance, in connection with the murder of Arbab Sikandar Khan Khalil.

2. A complete challan was submitted in the Court against all the three accused and as many as 38 witnesses have been mentioned in the calendar of witnesses, who may be summoned by the prosecution to depose against the accused.

3. The trial proceeded in the Court where the statements of 14 witnesses, all said to be formal witnesses, have so far been recorded.

4. The record would show that in the beginning Muhammad Tahir accused was not represented by any counsel but later Mr. Bashir Ahmad Malik, Advocate took upon himself the responsibility of defending him at the trial. Subsequently, however, Dr. Khalid Ranja, Advocate, was also engaged by Muhammad Tahir accused for his defence.

5. It was on 14‑5‑1983 that the accused Muhammad Tahir made, through Dr. Khalid Ranja Advocate, an application to the trial Court that since the investigation of the case was conducted by different Police Officers and Agencies who recorded statements of many witnesses, the accused, according to law, were entitled to receive copies of the statements, recorded separately or in police diary, of all such witnesses who were made to join the investigation by, and who made statements to, each one of such Police Officers or Agencies, that the accused were also entitled to receive the copy of the report submitted to the Governor by the Investigation Committee of the Crimes Branch appointed by the Governor to conduct the investigation, and that since the copy of the report and the copies of all such statements have not been supplied to the accused, the trial would stand vitiated as being in violation of mandatory provisions of law. It was admitted in the application that Muhammad Tahir accused was supplied with the copies of the statements of eye‑witnesses recorded under section 161 'and section 164, Cr.P.C. In the last para. of that application it was finally prayed that, the copies of the statements of all such witnesses, the copy of the inspection note recorded by each one of the Police Officer/Agency conducting investigation, the copy of the final report and the copy of the report submitted by the Investigation Committee to the Governor be made available to the accused.

6. The learned trial Judge, vide his detailed order, dated 22‑5‑1983 however, dismissed that application.

7. Against the aforesaid order of the learned trial Judge, Muhammad Tahir accused has come to this Court in revision.

8. Dr. Khalid Ranja, Advocate, appeared on behalf of the petitioner, M . Zahoorul Haq, Advocate‑General for the Province, appeared on behalf of the State and Mr. Hidayatullah Khan, Advocate appeared on behalf of the complainant. The arguments of the learned counsel were heard and the record perused with their assistance.

9. Since the deceased (Arbab Sikandar Khan Khalil) was an important political person in the country, the investigation of the murder case, it appears, was made by various Police Officers. That being so, it would be quite natural to presume that different Police Officers,‑ who were asked to investigate into the circumstances and the facts of. the case, must have recorded the statements of all those witnesses who appeared to such Police Officers to be acquainted with the circumstances and the facts of the case. The petitioner before me in his application made to the trial Court had mentioned the names of the different Police Officers and Agencies who, according to him, were entrusted with the investigation of the case. That positive assertion went un-controverted before the trial Court as well as in this Court and when asked the learned Advocate‑General frankly stated that quite astonishingly in this case he was not supplied with the proper record by the quarter: concerned nor was he properly assisted by anyone from the police establishment so much so that none of the Police Officers having charge of this case had ever visited his office. This, frankly speaking, was a lamentable tale to tell and it is for the authorities Concerned to take note of this situation. All that I can say at the moment is that since the learned Advocate‑General was not provided with the proper assistance and record by Police establishment, the Court also was placed in a situation in which there was no other alternative but to accept as correct that the Police Officer/ Agencies referred to in the application made by the petitioner before the trial Court did inquire or investigate into the case.

10. Dr. Khalid Ranja, the learned counsel appearing for the petitioner, first taking up the issue of the enquiry report submitted by the Investigation Committee of the Crime Branch to the Governor submitted that the said report should have been placed before the trial Court and not withheld from it and if any privilege with respect to that report was claimed by Government, then the matter should have been left to the decision of the Court. His argument was that his main grievance was against the withholding of that report from the trial Court. The learned Advocate‑General at this juncture came forward with an offer that the said report would be placed before the trial Court and privilege claimed and other legal objections raised there to be re‑determined by the trial Court. The learned counsel for the complainant supported the learned Advocate‑General. The learned counsel for the petitioner in reply accepted the offer and stated that he would be satisfied with the course suggested. This, in my view, is the correct legal approach.

11. The request of the accused‑petitioner relating to the grant of copy of the report submitted by the Investigation Committee to the Governor is accordingly disposed of in above terms. The impugned order to that extent is set aside. I would, here like to add that the A learned trial Judge would also see whether the investigation (if any) conducted by the Investigation Committee, which submitted report to the Governor, was conducted under Chapter XIV of the Code of Criminal Procedure, or it was an exercise conducted by the Committee under an executive or administrative order. If latter, then the question of the grant of copy of that report to the accused would not arise.

12. The question which remains to be considered with respect to the grant, to the accused, of the copies of the recorded statements of all the witnesses who were examined by various Police Officers making investigation into the circumstances and facts of this case under Chapter XIV of the Code of Criminal Procedure. Dr. Khalid Ranja, the learned counsel for the petitioner, contended that the accused was, as of right, entitled to the copies of the statements of all the witnesses recorded under section 161 and section 164, Cr.P.C. as well as the other documents mentioned in section 265‑C, Cr.P.C. He contended that any failure to comply with the provisions of section 265‑C, Cr.P.C. would vitiate the trial and the consent of the accused or his counsel to the contrary would be meaningless and being contrary to mandatory law would not operate to cure the defect. He further argued that since in the initial stages of the case the accused‑petitioner remained un-represented by a counsel he was unable to understand the implications of the case. He contended that any agreement of the accused or his counsel to an act which was contrary to law or which prejudiced the right of defence of the accused would not be binding on him because the primary duty to implement the law and to comply with its mandatory provisions lay on the Court and not on the accused. The learned counsel, while referring to the application (in Urdu), dated 15‑5‑1983 submitted by the accused‑petitioner to the trial Court, submitted that it was clearly stated therein that he was supplied with the copies of the statements of only 16 witnesses and that he was not supplied with the copies of the statements of other witnesses who were examined by the Police, nor with the copies of the Spot Inspection Report, Final Report and the F .I .R . In the application, dated 14‑5‑1983, submitted by the accused‑petitioner through the learned Advocate, it was mentioned in para. 4 thereof that the copies' of the statements of eye witnesses recorded under section 161 and section 164, Cr.P.C. were supplied to the accused‑petitioner. Concluding his arguments, the learned counsel for the petitioner Submitted that the learned trial Court may be directed to arrange for the supply to the petitioner the copies of the statements of all the witnesses recorded separately or in Police diary by all the officers who investigated the case as also the copy of the. F.I.R., the Spot 'Inspection Report and the Final Report, if any, prepared by all such Investigating Officers. The learned counsel relied in, this regard mainly on the authorities reported as P L D 1953 Dacca 10; P L D 1966 B J 30; 1970 P Cr. L J 735; 1969 P Cr. L 3 568; P L D 1979 SC 230; P L D 1982 Lah. 10 and P L D 1983 Lah. 139.

13. The learned Advocate‑General representing the State did not dispute the legal position that the accused is as of right entitled to the copies of the statements of all the witnesses recorded tinder section 161 and section 164, Cr.P.C. plus the other documents mentioned in section 265‑C thereof, subject to the restriction contained in the proviso to that section. He, however, contended that the entitlement of the accused extends only to such statements of the witnesses which may have been recorded by the Police Officers making investigation under Chapter XI V of the Code of Criminal Procedure and not to any other document prepared or statement' recorded by any other Agency not exercising powers or making investigation under the said Chapter of the Code, especially when such document or evidence is neither put before the trial Court nor the Court is called upon to look into that document or evidence in order to determine the guilt or the innocence of the accused.

14. The learned counsel for the complainant adopted the argument of the learned Advocate‑General.

15. This case has been instituted upon the police report, and since the arguments of the learned counsel for the parties revolve round section 265‑C, Cr.P.C. it would be convenient for the sake: of reference to reproduce the relevant provisions of this section, Which are as follows: ‑

"265‑C. Supply of statements and documents to the accused.‑ (1) In all cases institute 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 ha first visit to the place of occurrence and the note 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.

16. The plain reading of the aforesaid provisions would show that in so far as the supply of the copies of the statements of the witnesses is concerned, clause (G) of subsection (1) contains the words 'all witnesses' and not the words 'witnesses to be produced at the trial'. There could, therefore, be no doubt that the Legislature intended that' the accused person, who may later enter upon his defence, has to supplied with the copies of the statements of all the witnesses recorded by the Investigating Agency, which conducted investigation under Chapter XIV, Cr.P.C., subject to the restriction contained in the proviso g to that subsection. Such statements may have been recorded in any form and may favour the prosecution or the accused. The language of the section being express and unambiguous, it cannot be interpreted to mean that the words 'all such witnesses' appearing in the section would be read as 'all witnesses intended to be produced by the prosecution at the trial'. If that had been the intention, of Legislature, it would have been simple to insert words in the section to that effect. To similar effect are the provisions contained in two provisos to subsection (1) of section 162, Cr.P.C.

17. The Police Officers are in the habit of recording in the Ziminis or in the gist form the statements of some of the witnesses examined by them during the course of an investigation. Such statements have been judicially pronounced as 'boiled statements' and they either point towards the guilt or towards the innocence of the accused. It is also the requirement of law that the accused should be provided with the copies of such statements. The intention of law in so prescribing evidently is that the accused should not remain prejudiced in his defence because it is always in the light of the evidence and the material collected by the Investigating Agency that the accused decides upon adopting a particular line of defence.

18. I am, therefore, of the view that the accused‑petitioner in this case was entitled to the copies of the statements of all the witnesses examined by all the Investigating Agencies who conducted an investigation p in this case under Chapter XIV of the Code of Criminal Procedure, whether such statements were recorded by them separately or in gist form or in police diaries, subject to the restrictions mentioned in the proviso to subsection (1) of section 265‑C, Cr.P.C.

19. It has been urged before me both by the learned Advocate‑General and the learned counsel representing the complainant that the copies of the statements of witnesses had already been supplied to the accused, as mentioned by the Court in the order‑sheet, dated 6‑7‑1982, which also contains in the margin a recital in Urdu to that effect, thumb impressed by two of the accused, including the accused‑petitioner, and signed by the third accused. It is true that such order and such recital do appear in the order‑‑sheet of the said date, but unfortunately the Court failed to mention the names of the witnesses whose statements were handed over to the accused. The accused‑petitioner in his two applications made to the trial Court, on the other hand, categorically stated therein that he was supplied with the copies of the statements of only sixteen witnesses, which included the eye‑witnesses. The facts stated in the two applications remained un-controverted and the natural presumption would be that the order of the Court relating to the supply of the copies of the statements of witnesses to the accused related to these sixteen witnesses which included eye‑witnesses. It can under no circumstances be presumed that the copies of the statements of witnesses who were not mentioned in the calendar of witnesses or the copies of 'boiled statements' which may have been recorded by the Investigating Officer in the Ziminis had also been supplied by the Court to the accused.

20. In order to resolve the controversy and to be fair to all the accused, it would be proper to direct the learned trial Court to supply to the accused‑petitioner as well as other accused in the case the copies of the statements of all the witnesses recorded by the Police Officers who investigated the case under Chapter XIV of the Code of Criminal Procedure. Such statements, either in details or in gist form, may have been recorded by the police separately or in the police Ziminis. The copy of each such statement, either in details or in gist form or in police. Ziminis, as the case may be, shall now be provided to the accused‑petitioner and the other accused. The Court would, however, be competent to direct the exclusion of any part of such statement if it falls within the purview of the proviso to subsection (1) of section 265‑C, Cr.P.C. In addition, the copies of the other documents mentioned in section 265‑C(1) , Cr.P.C. shall also be provided to all the accused. This direction shall also be followed in the case under section 307/109, P.P.C. which has been amalgamated with the main case under section 302 etc., P.P.C. if a separate record was prepared by the Investigating Agency with respect to that case.

21. The aforesaid direction would give rise to another point and that is that whether the fourteen witnesses already examined by the learned trial Court would require to be re‑examined. My answer to this question would be that after the copies of the statements and the documents mentioned in the above paragraph are provided to all the accused, they may be asked by the learned trial Court as to whether or not they would like to cross‑examine any of the said witnesses in the light of material which would now be provided to them, and in case anyone of the accused expresses his desire to cross‑examine any of the said witnesses, then that witness would be summoned by the Court under section 540, Cr.P.C. and the accused afforded an opportunity of cross‑examining him.

22. In the result, while accepting this petition in the above terms, impugned order of the learned trial Judge is set aside. He shall the impugned now expeditiously proceed with the trial of this case and conclude it as early as possible.

M.Y.H Petition accepted.

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