Mohibullah Vs State

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

v JUDICIAL DEPARTMENT Cr. Misc:/O.P No. 77-Pl2022.

JUDGMENT

Date ofhearing... ..12.12.2022.......

Petitioners: (Mohibullah) By Mr. Fawad Afzal Sah, Advocate.

Respondents (State) By Mr. Muhammad Inam Khan Yousafzai, AAG, Mr. Kamran-us-Salam Qazi, Amicus curiae.

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ISHTIAQ IBRAHIM. J.- This petition, under section 561-4. Cr PC, calls for the evaluation of an order of Learned Additional Session Judge XVI/JSC Peshawar that discarded the defense objection on allowing the prosecution witness to refresh memory from the police record

2.In the petitioner's trial for the offense under section l1 CNSA/ 9D CNSA (F.I.R No 1223 dated 1.8.2021 P.S Hayatabad, Peshawar), the trial court examined Ibad Wazir, the prosecution witness. Ibad Wazir is witness to the recovery of contraband. He testified to the alleged incident of 1.8.2027, the recovery of ICE weighing 5 grams from the personal search of accused Inamullah, six

packets of heroin weighing 3750 grams, and ICE weighing 06 Kg frorn the secret cavities of the car in which the accused traveled. He also testified to the separation of samples and the seal of the case property.

He finally affirmed the correctness of the recovery memorandum Exhibit PW 4ll. At this juncture, the defense objected that without a formal request for refreshing memory, the witness had perused his statement on the file. The prosecutor resisted the objection claiming the rights of the witness under Article 155 of the Qanoon-e-Shahadat Order 1984. The trial court decided that the witness has the right to refresh memory under Article 155 of the Qanoon-e-Shahadat Order 1984 and that he may peruse his statement and the record he had endorsed.

3.In the first question in cross-examination, the defense asked the witness about answering from the police file. The witness admitted that he had perused his police statement and the contents of the recovery memorandum during examination-in-chief. To another

question that shortly followed, the witness answered he V was reading the police file during cross-examination

4.After a few questions in cross-examination, the defense objected again that the witness could not refresh his memory without a formal request and that the police fiIe is before the witness when he is in the witness box.

The trial court ovemrled the objection and ordered that the witness already had permission to refresh memory under Article 155 of the Qanoon-e-shahadat Order 1984.

5.The petitioner counsel submits that the trial judge erred in allowing the witness to refresh his memory without a formal request from him or the prosecution. He contends that the method adopted in allowing the witness to have the whole police file before him while giving testimony cannot conceivably be called "refreshing memory. He urges that such practice, if permitted, would bring the exercise of cross-examination at naught, and would seriously prejudice defense rights, thus a flagrant violation of the right of a fair trial.

6.Arguments heard. Record perused.

7.The petition raises questions of significant legal import on the use of police files, the use and evidentiary value of statements under section 161 CrPC in evidence, and the scope, and method of refreshing the memory of the witnesses

8.As a general rule, witnesses forget, and the use of aids to stimulate or jog the memory is permitted. The trial judge has discretion in allowing witnesses to refresh their memories, albeit circumscribed by the applicable law. It would be necessary, therefore, to put the law in context.

The discussion shall proceed on all the documents that may have relevance to investigation.

9.Section 172 Crrminal Procedure Code deals with police diaries. The section mentions that the investigation officer shall enter into it the day-to-day record of his investigation. It further mentions :

I Court may sendfor the diaries;

2 Court may use such diaries, not as evidence in the case but to aid in the inquiry or trial; 3 The accused ts neither entttled to use such diaries nor entitled to see them;

4 The provisions of section l6l or section 145 of the Evidence Act, of 1872 (now Articles 157 and 140 of the Qanoon-e-Shahadat Order 1984) shall apply if the police fficer

who made them refreshes his memory or the court uses the diary to contradict such fficer.

10.It follows, from above, the police diary IS essentially a confidential record that the accused cannot see or use as evidence. However, the accused is entitled to use it when the court questions the witness about that diary or the police officer refreshes his memory Furthermore that only the police officer who made the diary can use it to refresh his memory.

11.The earliest authority on the point, Allahabad High Court decision in Queen-Empress vs Mannu on 13 July 1897t dealt with this aspect and held:

"There is no provision in Section 172 of the Code of Criminal Procedure enabling any person other than the Police fficer who made the special diary to refresh his memory by looking at the special diary, and the necessary implication is that a special diary cannot be used to enable any witness other than the Police fficer who made the special diary to refresh his memory by looking at it. This is in truth a general principle of law. The Criminal Court, but not an accused person or his agent, unless Queen-Empress vs Mannu on 13 Julv. 1897 (indiankanoon'ors)

ary lo/TnqIi\to Sulpoat oN 'ssaur^4' ,taqlo r(uo ot slualuoc stt to l"tod tuo 'to 4 Moqs ol .,to 'aso) aql u! ssauuL "taqto tuo tctpo.ttuoc ol rQ'rud D 'to unoJ aql Sutlqoua lo asod.md aqt nt rcu puo '(1uo asodmd Toqt rc! saqddo u asoc q)ns m puo 'satlddo 'Zl8t 'pv acuapt^g uotpuJ arytoe f t uolu DS ruqt U apout oqu ncg{o aclpd aqt SuttcrpD'\uoc lo asod"rnd ary rct t,to1p lonads aqt sasn Ltno) ary I Quo s1 [ zmpnotd louttttt.D lo @j-ary lo /Tm@a! to suot srrto'td aqt lo,ttuoc "to pua$a ,taqila pu saop 'zl8[ 'lcv acuapmg uztpuJ ary loeVfA@$ '4 aqoru oqtt ncg$o nqod aqt uoqt Dqlo ssaurt rfuo tctpo,ttuoc of pasn aq puuoc ttotp prcads ary pqt ^sl uolloctldwr t'tossacau aqt puo 'U apout oqot 'tac1[o a4pd aW uDql Dqp ssaufitut r(uo Suttctpo"ttuoc to asodtnd ary nt t"torp Tonads aqt asn ol pasncco aqt rc uoryncasofi aqt 'uno) aql Surlqoua affipacord 1outruu3 to aqo) ary to/[l uolp$ ur uotsu.o.rd ou si aDqJ 'p8a1111-' aq pruo$ t"to1p Tonads ary to asn o qcns ask nqp 'rulq Sut\crpotluoc to asod'tnd ary.tolpasn aq ot a.m so t,ro1p lopads aqtto q ncg{o nryod aqt to uo!ruailo st,rod qcns

aw ilDc pu? 'zl8[ 'tcY nuapag uolpuJ aql lo (f,fZO@al to parulcoua cg[tcads aqt qtu t1dutoc tsnw LtnoJ aqt os 3u1op antaq ruq 'U aporu oqu.racgSo nqod aqt Suttcrpo.quoc to asod.rnd ary "rot rLtorp lonads aqt asn uoc 'ttoruaru nq qsa"{at ol np.to ut {"totp aql ru qool ot pal ollo uaaq soq .tacg{o acryod aqt

Code of Criminal Procedure consistent with the rules of construction and a lmowledge of the English language is possible by which the special diary is to be used to contradict any person except the Police fficer who made it. It is not enacted in Section 172 of the Code of Criminal Procedure by reference to Section 145 of the Indian Evidence Act, 1872, or otherwise that tf the special diary ts used by the Court to contradict the Police fficer who made it, it may thereupon or thereafter be used to contradict any other witness in the cQSe."

12.As for the statements recorded under section 161 CrPC, their only use is for contradiction. Section 1,62 CrPC explicitly provides it. That is not to say, however, that the recovery memo also comes within the prohibition of section 162 CrPC. The distinction was admirably made clear in "Vishnu Krishna Belurkar V The State Of Maharushtra on 18 February 1974(1974) 76 BOMLR "Now if these are the purposes for which such panch namas are made, the question that arises for consideration is whether the fact that such record is scribed by the police fficer investigating the offence or by a constable working under him during the course of such investigation converts such record into statements made by the panch to the police fficer within the meaning of Section

l62,Criminal Procedure Code, for, unless such record amounts to statements made to a police fficer withtn the meaning of that section it would not fall within the ban contained therein. It was not disputed before us that Section 157 of the Evidence Act ,s controlled by the special provisions of Section 162, Criminal Procedure Code, and therefore, if the statements, though fqlling under Sectionl|T of the Evidence Act, were also to fall under Section 162, Criminal Procedure Code such statements would become inadmissible and could be made use of only fu, the purpose mentioned in the proviso to Section 162, that ts to say, for contradicting the witness after following the procedure indicated in Section 145 of the Evidence Act.....In our view, having regard to the primary and essential purpose for which these panchanamas qre made during the course of investigation of an offence, it ts not possible to come to the conclusion that there is an element of communication, that is to say, there is an intention to communicate to the police fficer the subiect- matter of the things seen and heard by the panchas which are recorded in these documents....-.....ln our view, there is a clear distinction between a narration made to the police fficer with a view to communicate or impart knowledge of the subiect- matter of such narratton to the police fficer and a mere record of what the panchas have seen and heard which intended to as aid oir to the chas when thev sive att trial"

13.The last and most significant question involves the correct application and procedure of refreshing memory Article 155 Qanoon-e-shahadat Order 1984 relates to the present recollection revived, and Article 156 Qanoon-e- Shahadat Order 1984 to the past recollection recorded.

14.The Court of Appeal Manitoba (Province of Canada) in R v. Wilks, 2005 MBCA 99 (CanLII) drew the distinction as:

"Witnesses often forget, and so it is permissible to use aids to assist the witness. The use of these aids will fall into one of two categories. They will either i) asstst the witness by reviving his or her memory so that the witness, whose memory has been jogged by the aid, now has a present memory of the fact ("present memory revived"), or ii) be a record of the fact, previously made and now attested to as qn accurate record ("past r e c oll ection r ec or ded " 1 "

" In the cuse f oresenl memorv the aid is not evidence. but is simolv a facilitative mechanism which becomes irrelevant once the witness has had his her oresent memorv revived the use of the aid. In the case of oast recollection recorded, there is no nresent memory, so it is the evidence of the past recollection, recorded usuallv in the form of notes or the like. that is admitted".

15.The precondition for admissibility of the past recollection recorded from Article 156 of QSO is that the witness is sure that the facts were correctly recorded in

the document that is used to refresh memory. The Wilks2 case refers here to Wigmore criteria I The past recollection, must have been recorded in some reliable way.

2 At the time, it must have been sfficiently fresh and vivid to be probably accurate.

3 The witness must be able now to assert that the record accurately represented his lcnowledge and recollection at the time. The usual phrase requires the witness /o affirm that he "lcrlew it to be true at the ttme".

4.The original record itself must be used if it is procurable."

From the Wilks'cur. preconditions for the admissibility of present memory revived are as follows:

"Although no precise formula need be followed, the substance of what is dealt with in the following extract fro* Thomas A. Mauet, Donald G. Casswell & Gordon P. Macdonald, Fundamentals of Trial Technique, 2nd Canadian ed, (Boston: Little Brown and Co., 1984), must be discernible -frr* the evidence (at pP. 102-3):

A certain litany must be followed to establish the foundation for refreshing recollection ....

The following elements must be demonstrated to establish a foundation for refreshing the https://www.canlii.orglen/mb/mbca ldocl2OO5/2005mbca99/2005mbca99.html ' https://www.canlii.orglen/mb/mbca ldocl2oo5l2005mbca99/2005mbca99.html

recollection of a witness who is on the witness stand:

I Witness lcnows the facts, but has a memory lapse on the stand.

2 Witness l*tows his report or other writing will refresh his memory.

3 Witness is given and reads the pertinent part of his report or other writing.

4 Witness states his memory has now been refreshed.

5 Witness now testifies what he knows, without further aid of the renort or other writins.

It is on the aforesaid standard that the judges discarded the evidence in the Witks'Case'

"But the problem in the cqse was that what went into evidence went well beyond the fficer's current recollectton. For example, "[tJhe account of the murder was put tnto evidence word for word fro* the excluded ... transcript" (at para. 55).

This, said Binnie J., should not have been permitted (at paras. 60-61):

The fficer was quite entitled to attempt to "refresh" his memory by an out'of-court review of the corrected transcript, but in the witness box his testimony had to be sourced in his "refreshed" memory, not the excluded transcript.

a https://www.canlii.orglen/mb/mbca ldocl2OO5l2005mbca99/2005mbca99.html

In short, the problem with the corrected transcript as a stimulus to memory is not that it was itself inadmtssible but that it failed to stimulate".

16, Applying the law to the facts, it is an inescapable conclusion that the trial court did not follow the legally acceptable procedure of permitting a witness to refresh memory. It is clear that before reading the record, the witness did not mention his memory lapse or that he needed a document to jog his memory as a prerequisite for invoking Article 155 QSO. There was no request from the prosecutor or the witness to lay the foundation for memory recall. He was an eyewitness to the recovery supposed to depose in the witness box from his memory, not from police or judicial file, authored by someone else. If this practice is not streamlined it would definitely have effect on the dispensation of criminal justice. Again, and more importantly, the trial court permitted the witness to record evidence while the police file was before him. Instead of using the record to stimulate witness memory, if at all it was exhausted, the trial Court

allowed him to have a full view of the file, regardless of the nature of the documents. The witness, as it appears, regurgitatedfrom the record, unbridled to read when and where wanted.

There is no gainsaying that allowing the probative value of the recorded statement to prevail would be prejudicial to the rights of the accused and an infringement of a fair trial

For the foregoing, I would allow the petition, set aside orders of the trial court dated 8.9.2022, and direct that the trial court shall record the evidence of PW-Ibad Wazir again in accordance with the guidelines given in this judgment. Consequently, the statement of PW Ibad earlier recorded 1n the case shall be considered inadmissible and of no legal effect.

Copy of this judgment be placed before Hon'ble the Chief Justice for his kind perusal and the approval for circulating copies of this judgment to all the Judicial Officers in the Province for their guidance.

Announced Dated. 12.12.2022.

E

(S.B oJ) llon'ble Mr. Justice Ishtiaq Ibrahim

(K.Ati)