Muhammad Yousaf VS The State, etc

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT,

ISLAMABAD

CRIMINAL REVISION NO.07 OF 2022

Muhammad Yousaf Vs.

The State and others

Petitioner by : Mr. Jan Muhammad, Advocate.

State by : Hazrat Younas, State Counsel.

Mr. Muhammad Nadeem Mughal, S.I.

Respondent by : Rao Muhammad Sarfraz, Advocate.

(For Respondents No. 2 to 4)

Date of Hearing : 07.02.2022.

SAMAN RAFAT IMTIAZ, J.:- The instant criminal revision petition has been filed under Section 435/439-A read with Section 561-A Cr.P.C. The Petitioner (Muhammad Yousaf) has assailed order dated 21.12.2021 (“Impugned Order”) passed by learned Additional Sessions Judge/Special Court GBV, East/West-Islamabad, whereby the application for correction in the statement of PW-12 filed by the Petitioner, was dismissed.

2.Necessary facts, as per the contents of the memo of petition, are that the Petitioner lodged F.I.R. No.223 dated 23.09.2020 under Sections 302, 376, 380, 411, 34, PPC Police Station Secretariat, Islamabad against unknown accused persons and on 28.09.2020 three accused / Respondents No.2 to 4 were nominated by the prosecution. Total 13 witnesses deposed before the learned Trial Court including the Petitioner being Complainant of the case as PW-12.

3.Learned counsel for the Petitioner, inter alia, contended that the Impugned Order is contrary to statutory as well as judicial directions; that the Impugned Order is non-speaking order; that during recording of evidence of Petitioner as PW-12 the date of occurrence was inadvertently/mistakenly written as 30.09.2020 instead of 23.09.2020; that the Petitioner is Saraiki speaking and as such is not fluent in Urdu let alone English, which was the language in which the evidence was recorded by the Court despite which it was not read over to the Petitioner as

Muhammad Yousaf Vs. The State, etc

per requirement of Section 360, Cr.P.C.; and that if the correction is not made the Petitioner will suffer irreparable loss.

4.On the other hand, the learned counsel for Respondents/Accused stated that translation of the Petitioner’s statement in Examination-in-Chief was being carried out at the time of recording of examination-in-chief in the presence of his counsel, who got the statement recorded himself as such there is no clerical error. The application for correction in the Petitioner’s statement was filed 23 days after his examination-in-chief when even the cross examination had been conducted already and that the prosecution has no right to fill up lacunas. He further submitted that there is no provision in Cr.P.C. to correct the error in evidence by replacing the same as prayed for by the Petitioner. As per the learned counsel for the Respondents/accused statement under Section 342, Cr.P.C. has been completed and the matter is at the stage of final arguments. The present petition is merely a delay tactic as the accused is behind the bars.

5.Learned State Counsel submitted that under Section 360, Cr.P.C. correction must be made on the spot. There is no provision under Cr.P.C. to make corrections subsequently. He further stated that the record is consistent otherwise in showing the date of occurrence as 23.09.2020, therefore, evidence will be appreciated holistically at the time of final arguments.

6.Arguments heard. Record perused.

7.Examination of the Impugned Order reveals that the learned Additional Sessions Judge has held that the court will peruse and examine the statement of the PW-12 (Petitioner) along with the other evidence available on record and if it will find that the date is a mere clerical mistake then it would not be fatal to the prosecution case. When asked how the said holding is prejudicial to the Petitioner, the learned counsel for the Petitioner stated that the Trial Court merely recording in the judgment that the incorrect date was a clerical error would not be sufficient as the appellate courts will look at the evidence therefore the evidence ought to be corrected by way of a memo.

8.I am afraid that the Petitioner’s plea is untenable. I have gone through the provisions of Section 360, Cr.P.C., which has been relied upon by the learned counsel for the Petitioner. Under sub-section (2) of Section 360, Cr.P.C., if the

Muhammad Yousaf Vs. The State, etc

witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or the Session Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness, and shall add remarks as he thinks necessary. Thus, even if the objection was made timely, the Sessions Judge had the right to make a memorandum of the witness’ objection instead of correcting the evidence meaning thereby that correction cannot be claimed as a matter of right.

9.However, in the instant case, the objection has been made belatedly. It is not possible for this Court to determine whether the steps stipulated in Section 360, Cr.P.C., were indeed followed or not particularly when the learned counsel for the Accused as well as the learned State Counsel maintain that the contents of the examination-in-chief were read out to the Petitioner at the relevant time. Moreover, the deposition itself shows that it bears the usual endorsement “R.O & A.C” at the bottom. In any event, the learned counsel for the Petitioner has not pointed out any provision in the law whereby the remedy he is seeking is available at this stage nor has he cited any case law to such effect.

10.The matter is at the stage of final arguments. As observed by the learned Additional Sessions Judge, the learned Trial Court will appraise the evidence holistically and has ample powers to draw appropriate inference if the date of occurrence as given by the Petitioner in his examination-in-chief does not correspond with the bulk of the other evidence on the record. However, in case any prejudice is caused to the Petitioner at such stage, he will be at liberty to raise this point before the appellate court in appeal against the judgment.

11.For the foregoing reasons, instant criminal revision petition is dismissed.

(SAMAN RAFAT IMTIAZ)

JUDGE

Announced in the open Court on 17th day of February, 2022.

JUDGE

Junaid