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Criminal Revision No.153 of 1986, decided on 1st October,1986.

---Ss.161, 265-C & 439--Contradicting witness with previous statement--Statement incorporated in case diary but not separately recorded--Whether such statement can be used for contradicting wit ness--Suppplementary statements of witnesses incorporated in case diaries--Copies supplied to accused on their request--Sessions Judge disallowing to contradict witnesses with supplementary statements- Supplementary statements of witnesses incorporated in case diaries, held, were in essence and substance statements under S. 161, Cr.P. C. accused would, therefore, be entitled to confront witnesses with such statements and Sessions Judge erred in law by preventing accused from doing so.

Mukhtar Ahmad v. The State 1986 P Cr. L J 1251 and Zulfiqar Ali Bhutto v. The State P L D 1979 S C 53 ref.

Mian Abbas Ahmed and Muhammad Saleem Malik for Petitioner.

Tasaddaq Hussain Jilani, A.A.-G. for the State.

Date of hearing: 1st October, 1986.

Ghulam Rasul alias Rasula, petitioner herein, is facing trial in the Court, of Sessions Judge, D.G.Khan for the murder of Faqir Bakhsh. Haji Karim Bakhah is brother of the deceased. D.S.P. Headquarters, D.G.Khan and D.S.P. Chaubara during investigation recorded supplementary statements of the complainant and other P.Ws. on 3-5-1983 and 7-'7-1983, respectively. At the trial, learned defence counsel applied for supplying copies of supplementary statements of the P.Ws. This request was granted on 18-7-1986. A dispute arose when learned trial Court disallowed the defence vide impugned order, dated 30-8-1986 to confront the complainant with his supplementary statement recorded by the D.S.P. on the ground that because it was incorporated in the Zimni, therefore, it was not a statement under section 161, Cr.P.C. Reliance was placed on a decision of this Court reported as Mukhtar Ahmad v . The State 1986 P Cr. L J 1251 as this case according to learned Sessions Judge laid down the "latest Law" on the subject and that the decision of Supreme Court reported as Zulfikar Ali Bhutto v. The State P L D 1979 S C 53 only covered cases where the statements of witnesses are incorporated in the Zimnis by the Investigating Officer 1to defeat the provision of section 265-C, Cr.P.C." but not otherwise. Against this order, the instant revision has been filed.

2. I have heard learned counsel for the petitioner as well as learned Assistant Advocate-General on behalf of the State and also perused the record.

3. The questions whether statement of a witness not recorded separately during investigation incorporated in the case-diary would be treated as a statement under section 161(3), Cr.P.C. and that whether its copy supplied to defence can be used for contradicting its maker have been elaborately considered and decided by their Lordships of the Supreme Court in Zulflqar Ali Bhutto's case (supra), in paragraph 78 of the report printed at pages 151 and 153. Relevant portions therefrom are reproduced here with advantage:

"After having heard the learned counsel for the parties at length. I am inclined to agree with the learned counsel for the appellant that where a statement has been made to the police by a person during the Investigation, the police officer should record it separately in terms of section 161 (3), Cr.P.C. Where, however, he does not do so but proceeds to incorporate it in the case diary, the statement should be construed as a statement under section 161, Cr.P.C. provided of course, it is in substance and essence a statement of the witness and not merely a statement of the circumstances ascertained through investigation ... ....

This right cannot be taken away or evaded by allowing the Investigating Officer of misusing his authority by incorporating in the case diary the statements recorded by him during the investigation which, though in spirit and essence fall within the purview of section 161, Cr.P.C. but are erroneously or mischievously embodies by him in the case diaries .... .....

Hence it is necessary to construe the provisions of section 265-C (and of 241-A) liberally and in the spirit in which they have been enacted. The interpretation contended for by the learned counsel for the prosecution overlooks the history and background of this legislation. The obligation created by these provisions cannot be evaded by merely incorporating the statements, which really fall under section 161, Cr.P.C. in his case diaries by the investigating Officer."

It is further held in more clear terms in para. 282 as under:--

"I may observe that consistently with the changed law making it obligatory for the statements of all witnesses recorded under section 161, Cr.P.C. to be supplied to the accused seven days before the commencement of the trial, it is duty of the prosecution counsel and the trial Court to see that all such copies are indeed supplied to the accused. They must ensure compliance with this requirement not only in relation to the statements recorded separately under section 161, Cr.P.C. but also as regards statements recorded in the police diaries, which is essence and spirit can be construed to be statements under Section 161, Cr.P.C. This is an important right conferred by the law on the accused and must not be defeated by any colourable device."

4. Learned Assistant Advocate-General does not dispute that supplementary statements of the complainant and P.Ws. recorded by the D.S.Ps. in the investigation of case in hand are in essence and substance statements of the witnesses under section 161, Cr.P.C. Therefore respectfully following the Supreme Court authority I would hold that the accused /petitioner is entitled to confront the complainant/ P.Ws. with their supplementary statements recorded by the D.S.Ps. during investigation and that the learned trial Court had erred in law by preventing the accused/ petitioner's counsel from doing so.

5. Before parting with this judgment, I am tempted to observe that learned Sessions Judge did not carefully go through Zulfiqar Ali Bhutto's case (supra) and, thus, fell in error by holding that the accused could "have copy of the statement of a witness incorporated in the Zimni only if the Investigating Officer had recorded the statement in "Zimni in order to defeat section 265-C, Cr.P.C." but not otherwise. Again he owes an explanation for having followed High Court view in preference to Supreme Court's dictum laid down in Zulfiqar Ali Bhutto's case (supra) in this matter. He must know that according to Article 189 of the Constitution a decision of the Supreme Court on a questionof law is binding on all Courts of the country. Copy of this order shall be placed on personal file of the Sessions Judge concerned after perusal by the Hon'ble Chief Justice.

S.A. Revision accepted.

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