2005 M L D 1470
Criminal Procedure Code (V of 1898)---
----Ss. 161, 162 & 439---Qanun-e-Shahadat (10 of 1984), Art. 140---Object and purpose of S.162, Cr.P.C.---Intention of legislature in framing S. 162, Cr.P.C. in the manner it did, was to protect accused against the use of statements of witnesses, made before police during investigation, at the trial, presumably on the assumption that said statements were not made in circumstances inspiring confidence---Section 162, Cr.P.C. was conceived in an attempt to find a via media, namely, while it enacted absolute bar against statement being used for any purpose whatsoever and it enabled accused to rely upon it for limited purpose of contradicting a witness in the manner as provided by Art. 140 of Qanun-e-Shahadat, 1984 by drawing his attention to parts of the statement intended for contradiction, same could not be used for corroboration of a prosecution or a defence witness or even a Court witness, nor could it be used for contradicting a defence or a Court witness by prosecution---Article 140 of Qanun-e-Shahadat, 1984 was controlled by 5.162, Cr.P.C. and prohibition contained in S.162, Cr.P.C. could not be defeated---Portion of evidence wherein statement had been, used by prosecution, would be disregarded as evidence, being inadmissible.
Abdul Rehman and another v. The State 1998 PCr.LJ 1523; Muhammad Akhtar and another v. The State 2002 YLR 220; Tahir Waheed and others v. State and another 2005 PCrLJ 1022; Nazir Hussain v. Muhammad Shafi and others PLD 1965 SC 188; Haji Muhammad v. The State PLD 1966 (W,P.) Lail. 344 and Fazlul Haque v. The State PLD 1959 Dacca 931 ref.
Muhammad Zahid Khan for Petitioner.
A.R. Tayyab and Ijaz Ahmad Abbasi for the Complainant.
Hafiz Munir Ahmad for the State.
Date of hearing: 2nd June, 2005.
SHAUKAT ALI VS State
2005 M L D 1470
[Lahore]
Before Muhammad Farrukh Mahmud, J
SHAUKAT ALI---Petitioner
Versus
THE STATE---Respondent
Criminal Revision No.68 of 2005/BWP, heard on /01/.
nd June, 2005.
JUDGMENT
This revision is directed against the order dated 21-3-2005, whereby the learned trial Court allowed the prosecution to use the statement of D.W.1 Abdul Majeed recorded under section 161, Cr.P.C. (hereinafter to be referred as the statement) as evidence.
2. The relevant facts are that petitioner is facing trial in case F.I.R. No.99 registered at Police Station Abadpur on 19-5-2004 for offence under section 302, P.P.C. The prosecution evidence has been recorded and defence evidence is being recorded. Abdul Majeed son of Muhammad Nawaz was named as eye-witness in the F.I.R. He was given up by the prosecution on the ground that he had been won over. The petitioner produced Abdul Majeed in his defence as D.W.1. While his statement was being recorded, the learned prosecutor confronted him with his earlier statement recorded by the police during the investigation under section 161, Cr.P.C. Learned counsel for the petitioner raised objection that the statement could not be used by the prosecution. The learned trial Court instead of passing an order allowed the prosecution to confront the D.W. with his earlier statement after noting down the objection of the learned defence counsel.
3. Learned counsel for the petitioner has argued that in view of the provisions of section 162, Cr.P.C., the statement recorded under section 161 of the Cr.P.C. during investigation could only be used by the accused and not by the prosecution. Conversely, Mr. A.R Tayyab, the leaned counsel appearing on behalf of the complainant, has argued that the statement recorded under section 161, Cr.P.C. by the Police qualified as previous statement and, thus, in the light of Article 140 of the Qanun-e-Shahadat Order, the prosecution could confront the witness with his earlier statement. He has placed reliance on the cases of Abdul Rehman and another v. The State (1998 PCr.LJ 1523), Muhammad Akhtar and another v. The State (2002 YLR 220) and Tahir Waheed and others v. State and another (2005 PCr.LJ 1022). The learned counsel has lastly argued that the revision was filed at a premature stage.
4. I have heard the learned counsel for the parties at length and have also gone through the relevant record of the case.
5. A bare perusal of section 162 of the Criminal Procedure Code makes it manifest that the intention of the legislature, in framing section 162 in the manner it did, was to protect the accused against the use of the statements of witnesses, made before the police during the investigation, at the trial, presumably on the assumption that the said statements were not made in circumstances inspiring confidence. Both, the section and the proviso, intended to serve primarily the same purpose, i.e., interest of the accused. The section was conceived in an attempt to find a via media, namely, while it enacts absolute bar against A the statement being used for any purpose whatsoever and it enables the accused to rely upon it for limited purpose of contradicting a witness in the manner as provided by Article 140 of the Qanun-e-Shahadat Order by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a Court witness, nor can it be used for contradicting a defence or a Court witness by prosecution. Article 140 of Qanun-e-Shahadat Order is controlled by section 162, Cr.P.C. and the prohibition contained in section 162, Cr.P.C. cannot be defeated. Reference is made to the judgment passed by the apex Court in the case of Nazir Hussain v. Muhammad Shafi and others (PLD 1965 SC 188), wherein it was observed as follows:---
"A previous statement of a witness cannot be utilised as substantive evidence unless this is contained in the evidence of the witness duly recorded in his presence at a previous proceeding, such as commitment proceedings, and then put in at the trial under section 288 of the Criminal Procedure Code, 1898. A statement recorded by the police under section 161 of the Code cannot be utilized as substantive evidence. It can only be utilised under section 162 of the Code to contradict such witness in the manner provided by section 145 of the Evidence Act, 1872."
It would also be advantageous to cite from the judgment passed by a learned Divisions Bench of the Lahore High Court reported as Haji Muhammad v. The State (PLD 1966 (W.P.) Lahore 344) hereunder:
"----The statement in the inquest report or under section 162, Criminal Procedure Code at the most can be utilised under section 162, Criminal Procedure Code to contradict such witnesses in the manner provided by section 145 of the Evidence Act. Therefore, the learned Public Prosecutor who cross-examined Ali Muhammad and Muhammad Iqbal P.Ws. with the permission of the Court and confronted them with their statements, Exhs.P.K/1 and P.K/2 respectively, in the inquest report could not do so as the same is hit by section 162 of the Code of Criminal Procedure. Therefore, the statements Exhs.P.K/1 and P.K/2 cannot be read in evidence, the same being inadmissible."
The observation made in the case of Fazlul Haque v. The State (PLD 1959 Dacca 931) is on all fours and is being reproduced below:--
"----My attention is drawn to the provisions of section 162 of the Code of Criminal Procedure which make such statements recorded in the course of an investigation by a police officer available only for the limited purpose of contradicting a prosecution witness at the request of the accused and of no one else. In the present case, the accused,did not seek to contradict this witness by his 161 statement but it was the prosecution which attempted to do so. Thus the prosecution could not do in view of the provisions of section 162 and, therefore, the contents of that statement were inadmissible."
The facts and circumstances of cases of Muhammad Akhtar (2002 YLR 220) and Abdul Rehman (1988 PCr.LJ 1523) cited by the learned counsel for the complainant are not relevant. However, as far as Tahir Waheed's case (2005 PCr.LJ 1022) relied upon by the learned counsel for the complainant is concerned, I am afraid, it does not help him in any manner, as it was held therein by the learned Judge "It is correct that the complainant or the public prosecutor cannot confront the statement of the witnesses recorded under section 161, Cr.P.C. mentioned in the calender of witnesses because there is complete bar under section 162, Cr.P.C." It is also noteworthy that the facts of the case of Tahir Waheed were entirely different and it was the accused who was allowed to confront a Court witness with his earlier statement.
6. For what has been said above, I accept this revision and hold that the portion of evidence wherein the statement has been used by the prosecution would be disregarded as evidence, being inadmissible.
H.B.T./S-385/L??????????????????????????????????????????????????????????????????????????????????? Revision accepted.
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