JUDGMENT

Dalip Singh, J. - Ten persons were sent up for trial by the learned Sessions Judge under Section 396, I.P.C. Three, namely, Jammun, Santa Singh and Umar Joyia, have been acquitted. All the others were convicted under Section 396 and were sentenced as follows: Kammun, Diwan Singh and Rahim Bakhsh each to transportation for life and Hazara Singh, Labh Singh, Chanan Singh and Imam Din, each to ten years rigorous imprisonment including three months solitary confinement. Kammun has not appealed. All the others have appealed and we have heard Mr. Iftikar Ali for Diwan Singh, Hazara Singh, Labh Singh and Rahim Bakhsh, and Mr. Dhanraj Shah for Chanan Singh. Imam Din has appealed through jail.

2. The prosecution relied on the statement of Saddar Din who was an approver in this case, and have also led evidence to corroborate his statement. The alleged dacoity was committed on the night of the 4th/5th January 1925, in the house of Ram Chand, petition-writer in the village of Kotli Nowshera, Sialkot District. The dacoits when retreating were pursued by the villagers and one of the pursuers named Haveli was shot dead. This dacoity was one of a number committed during the year 1925-26 under the leadership of Kammun, a notorious dacoit who has already been sentenced to death in another case and whose appeal in that case has been dismissed. Saddar Din, approver, is a relation of Kammun and admittedly was great friend with him.

3. The first point taken by Mr. Iftikhar Ali was that the learned Sessions Judge had refused to allow the accused the statement made by the approver to the police before he was tendered a pardon. The learned Sessions Judge held that this statement was made by the approver as an accused person |and not as a witness, and that, therefore Section 162, Criminal P.C., did not apply to the case. In my opinion the case is covered by Section 162, but even if the learned Sessions Judge were correct in holding that this statement was not within Section 162, Criminal P.C., it would be a previous statement of a witness and it could be used either to corroborate him or to contradict him under the ordinary provisions of the Evidence Act. Counsel for the Crown has relied on Section 172, Criminal P.C., as barring this statement. I do not think that Section 172 applies in any way to the statements of persons, and certainly does not override the provisions of the Evidence Act. I, therefore, think that the statement should not have been refused in evidence. In these circumstances we hold that counsel should be furnished with a copy of the statement and any contradictions between this statement and those made in Court by the approver should be taken as left unexplained by the approver. Counsel has contended on the authority of and A.I.R.1927 Nag 24 that the trial was vitiated by the learned Sessions Judge's refusal to supply the accused with a copy of the statement and allow cross examination of the approver with reference to that statement. We consider, however, that each case must be decided an its own facts and the extent of the prejudice to the accused in each case must determine whether the trial should be held altogether vitiated or whether the defect can be remedied by following the procedure that has been indicated above. In this case we are of opinion that the contradictions and differences did not so gravely prejudice the accused as to necessitate the setting aside of the trial. The matter of course might be otherwise, had the trial been a jury trial, out on this point I express no opinion.

4. A further objection was taken by counsel for the appellants that he was not allowed to cross-examine Ganpat (P.W. 11) with reference to certain omissions in his statement to the police and his statement in Court. It was contended by the authority of Iltaf Khan Emperor A.I.R. 1926 Pat. 362, that all omissions are contradictions. I am not prepared to subscribe, with all respect to the learned Judges, to the proposition that all omissions