LHC - Shahrah-e-Quaid-e-Azam -
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When accused is entitled to see Police diaries or statement of a witness recorded by Police.-- The Police diaries called for under section 172 of the Code of Criminal Procedure should not be shown to accused persons, or to their agents, or pleaders, except under the circumstances stated in the second clause of section 172 of the Code, that is, when they are used by a Police Officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such Police Officer. Sessions Judges and District Magistrates should issue such orders as are necessary to guard against the Police diaries being inspected by persons not entitled to see them. The right of an accused person to be furnished with a copy of the statement of a witness recorded in a Police diary is dealt with in section 162 of the Code.
Note:- These restrictions do not apply to person duly authorized to conduct the prosecution in any case.
2. Instructions regarding despatch of Police diaries and their translation with the records of criminal cases to the High Court.-- In submitting the records of criminal cases to the High Court, the Police diaries and English translations, or notes of them, should be separated from the records and placed in a sealed cover which should then be placed with the record.
3. Use of Police diary by Court.-- As to the manner in which Police diaries may be used by courts, the following remarks should be borne in mind:-
The provisions of section 172, that any Criminal Court may send for the Police diaries, not as evidence in the case but to aid it in an inquiry or trial, empowers the court to use the diary not only for the purpose of enabling the Police Officer who compiled it to refresh his memory, or for the purpose of contradicting him but for the purpose of tracing the investigation through its various stages, the intervals which may have elapsed in it, and the steps by which a confession may have been elicited, or other important evidence may have been obtained. The Court may use the special diary, not as evidence of any date, fact or statement referred to in it, but as containing indications of sources and lines of inquiry and as suggesting the names of persons whose evidence may be material for the purpose of doing justice between the state and the accused.
Should the Court consider that any date, fact or statement referred to in the Police diary is, or may be, material, it cannot accept the diary as evidence, in any sense, of such date, fact or statement, and must, before allowing any date, fact or statement referred to in the diary to influence its mind, establish such date, fact or statement by evidence.
Criminal Courts should avail themselves of the assistance of Police diaries for the purpose of discovering sources and lines of inquiry and the names of persons who may be in a position to give material evidence, and should call for diaries for this purpose.
4. Use of statement of witness made before Police; when accused may get its copies.-- As regards the proper use of statements made by witnesses before the Police during the course of an investigation, the provisions of section 162 of the Code should be carefully studied. It would appear from the provisions of that section that no statement made by a witness to a Police Officer during the course of an investigation under Chapter XIV of the Code can be proved at all for any purpose during the trial, if the statement has not been reduced into writing. If such a statement has been reduced into writing its use for any purpose whatever is also prohibited except when (a) it is the statement of witness called for the prosecution, and (b) the accused desires to use the statement or any portion thereof in the manner provided in *[Article 140 of the Qunun-e-Shahadat, 1984], to contradict the witness and thus impeach his credit. In such circumstances, the Court is bound to furnish the accused, on his request, with a copy of the statement of the witness before the Police unless it thinks it fit to withhold it under the proviso to section 162. The original written record of the statement or any portion of it, which is relied upon, must be put to the witness as required by *[Article 140 of the Qanun-e-Shahadat, 1984], and then the statement can be used for impeaching the credit of the witness as stated above. ***[...]
5. Method of contradicting a witness with previous statement.-- The procedure contemplated by Article 140 of the Qanun-e-Shahadat, 1984, should be carefully followed. When a witness is found to make statements conflicting with previous statements made by him in writing or reduced into writing, and it is intended to contradict him with the previous statements, the relevant portions of the previous statements should be read out to him and his attention should be called to the discrepancies, and he should then be asked to offer his explanation(if any) with reference to the same. The record of the Magistrate or Judge should show clearly that this procedure has been followed. The best way of doing this should be to put direct questions reciting the relevant portions of the two statements and asking for an explanation as to the discrepancies between the same and to record fully such questions and the answers given by the witness.
6. Use of First Information Report for purposes of corroboration of statement.-- It will thus appear that, as a result of the provisions of section 162 of the Code of Criminal Procedure, a statement, made by a witness before the Police, cannot be used to corroborate his testimony inspite of the provisions of *[Article 153 Qanun-e-Shahadat, 1984,] (ef. I. L. R. 6 Lah. 171). The first information report recorded under section 157 of the Code, however, does not fall within the scope of section 162 as it is not a statement made in the course of an investigation and hence it can be used to corroborate the testimony of the person making the report if he appears as a witness. It frequently happens, however, that the person making the first information report has no personal knowledge at all of the fact stated in the report and in such cases the report has no value except in so far as it discloses the manner in which the Police obtained the first information about the offence.
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[7. Confession made by accused to Police is admissible in evidence if it has led to discovery of any fact.- Section 162 of the Code of Criminal Procedure applies to the statement of persons examined as witnesses by the Police and not to the statement of an accused person, and it does not modify or override the provisions of Article 40 of the Qanun-e-Shahadat, 1984 in any way. Consequently a confession by an accused person to the Police, whether it has been reduced into writing or not, is admissible in evidence under Article 40 of the Qanun-e-Shahadat, 1984, if any fact is deposed to as having been discovered in consequence of such a confession.
8. Dying declaration excluded from operation of section 162, Cr.P.C.- Dying declarations falling under Article 46(1) of Qanun-e-Shahadat, 1984 are excluded from the scope of section 162 of the Code of Criminal Procedure.]
Computer Cell, Lahore High Court.
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For Further Information: info@lhc.gov.pk