PLD 2003 Lahore 290
Ss. 161 & 172‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 15, 49, 155, 156 & 157‑‑‑Examination of witnesses by police‑‑‑Diary of proceedings in investigation‑‑‑Relevancy of public record made in performance of duty‑‑‑Nature‑‑‑Refreshing of memory‑‑‑Procedure‑‑‑Provision of S.161, Cr. P.C. is independent of S.172, Cr.P.C.‑‑‑Only the case diaries are meant to he treated as "privileged" and shall not be made accessible to the accused‑‑‑Court, in terms of Art. 15, Qanun‑e‑Shahadat, 1984 can force the Investigating Officer to look into the case diaries. to answer correctly the question put to him in cross‑examination‑‑‑Case diaries can also be used by the Court to trace out the various stages of investigation‑‑Statements recorded under S.161, Cr.P.C. are not privileged even if recorded in the body of the case diaries‑‑Such statements are public documents within meaning of Art.49, Qanun‑e-Shahadat, 1984 and are per se relevant under the said Article‑‑‑Privilege stated in S.172, Cr.P.C. is not of absolute nature and provisions of Qanun‑e-Shahadat, 1984 are independent of the Criminal Procedure Code, 1898‑‑Principles.
Section 161 of the Cr.P.C. is independent of its section 172. Section 161 requires an Investigating Officer to record statement of a person who is acquainted with the facts of the case separately and section 172 which is independent, relates to maintenance of case diaries as record of the various stages through which the investigation has passed. It is only the case diaries which are meant to be treated as "privileged" and shall not be made accessible to the accused. It means clearly that the statements recorded under section 161 of the Cr.P.C. are not privileged even if recorded in the body of the case diaries. Those are public documents within the meaning of Article 49 of the Qanun‑e‑Shahadat. 1984 and are per se relevant under its Article 49. Moreover, the privilege stated in section 172 of the Cr.P.C. is not of absolute nature. The provisions of the Qanun‑e‑Shahadat. 1984 are independent of the Cr.P.C. An Investigating Officer has to refresh his memory by looking into the case diaries at the time he makes a statement in Court. Article 155 of the Qanun‑e‑Shahadat, 1984 provides that a witness, may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned or so soon afterwards as the Court considers it likely that the transaction was at that time fresh in his memory. The witness may also refer to any such writing made by any other person and read by the witness within the time aforesaid, if when he read it. he knew it to be correct. Whenever a witness may refresh his memory by reference to any document he may with the permission of the Court, refer to a copy of such document provided the Court is satisfied that there is sufficient reason for the non‑production of the original. An expert may refresh his memory by reference to professional treatises. Article 156 of the Qanun‑e‑Shahadat, 1984 is to the effect that a witness may also testify to facts mentioned in any such document as is mentioned in Article 1.55, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document. Article 157 of the Qanun‑e‑Shahadat, 1984 is to the effect that any writing referred to under the provisions of the two last preceding Articles must be produced arid shown to the adverse party, if he requires it. Such party may if he pleases, cross‑examine the witness thereupon. It is abundantly clear that the privilege referred to in section 172 of the Cr.P.C. is riot of absolute nature and allows the accused to have access to the case diaries to contradict cross‑examination through the Investigating 'Officer. Investigating Officer is bound to look into the case diaries recorded by him during the investigation of a case. In terms of Article 15 of the Qanun‑e-Shahadat, 1984 the Court can force him to look into case diaries to answer correctly the questions put to him in cross‑examination: The case diaries can be used by the Court to trace out the various stages of investigation.
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