QUTUBUDDIN vs STATE
This criminal revision application was filed against the order of the Additional Sessions Judge dismissing a request to recall medical witnesses for re-examination and to examine private witnesses under Section 540 of the Code of Criminal Procedure 1898 in a murder case under Section 302/34 of the Pakistan Penal Code 1860. The core legal question was whether recording the examination-in-chief of a material medical witness without the presence or assistance of a public prosecutor violates the mandatory provisions governing trials before courts of sessions. The High Court held that in a trial initiated by a police report, prosecution must be conducted by a public prosecutor pursuant to Section 265-A of the Code of Criminal Procedure 1898, and failing to secure the attendance of a public prosecutor while examining a material witness in a murder case vitiates the procedure. The court set aside the impugned order and directed the trial court to recall and re-examine the medical witnesses with the assistance of a public prosecutor.
- Whether the examination of a material witness in a murder trial without the assistance of a public prosecutor violates Section 265-A of the Code of Criminal Procedure 1898?
- Can a trial court be directed to recall and re-examine medical witnesses when their initial statement was recorded without a public prosecutor?
- Is the presence of a public prosecutor mandatory during a trial before a Court of Sessions initiated by a police report?
- Section 302/34, Pakistan Penal Code 1860
- Section 540, Code of Criminal Procedure 1898
- Section 265-A, Code of Criminal Procedure 1898
ORDER
1. Present applicant has preferred this Criminal Revision Application No, 81/2000 against the order dated 10.7.2000 passed by the II-Additional Sessions Judge Karachi South in Sessions Case No, 30.2.1999 under Section 302/34 PPC. The State vs. Yousaf and others) and has prayed to direct learned trial Judge to recall P.Ws. Doctors namely and respectively (i) Dr. Shahab Junejo and (2) Dr. Irshad for reexamination or allow private witnesses shown in the application under Section 540 Cr.P.C. to give evidence in the aforementioned case.
2. The main contention of Mr. Nawab Mirza advocate, who is representing the applicant in the aforementioned Criminal Revision Application is that the Dr. Shahab Junejo and Dr. Zahid Hussain have been examined by the trial. Court without procuring attendance of the public prosecutor and the learned trial Court itself has acted as public prosecutor and has drawn by attention on the deposition of Dr. Shahab Juenio and Dr. Zahid Hussain.
3. On 8.12.2000 this Court had ordered for call of R & P from the concerned Court with regard to veracity of the above statements. The trial Court submitted the report dated 15.12.2000 and has denied the allegations levelled by the advocate for the applicant and submitted that Mr. Nawab Mirza, advocate has made false statement and misguided this Court. Be that as it may. I have gone through the depositions of the P.Ws namely and respectively Dr. Shahab Junejo and Dr. Zahid Hussain. As far as Dr. Shahid is concerned, no where it is evident that the examination-in-chief of Dr. Shahab Junejo has been recorded in presence of public prosecutor although in the statement of Dr. Zahid Hussain the examination-in-chief is to P.P. for the State but in the statement of Dr. Shahab Junior no where it has cleared that the examination-in-chief has been done with the assistance of the public. prosecutor. Since it is a murder case and the presence of the public prosecutor is very necessary while recording statement of the witnesses and if public prosecutor was not available with the concerned Court, it was the duty of the Presiding Officer to borrow another DDA from DA. of the Sessions Court but the statement of Dr. Shahab Junejo and his examination-in-chief is without assistance of the public prosecutor.
4. On the other hand Mr. Mehmood A. Qureshi, advocate for the accused has submitted that what harm has been.done to the applicant if services of public prosecutor have not been procured by the trial Court while recording evidence of Dr. Shahab and has placed reliance on 1997 P.Cr. L.J. 1553 but the facts of the case cited by the learned counsel are distinguishable from the present case because in the case cited by the learned counsel for the accused the immaterial witness was examined but in the present case Dr. Shahab is very material witness. In this regard Section 265-A Cr.P.C. is reproduced as:-- "Trial before the Court was to be conducted by public prosecutor but in every trial before a Court of Sessions, initiated by the police report the prosecution should be conducted by public prosecutor." Mr. Arshad Lodhi, Assistant Advocate General appearing for the State has conceded with the contentions raised by Mr. Nawab Mirza. advocate for the applicant and has give no objection, if the revision is allowed and the trial Court is' directed to summon the doctors namely and respectively Dr. Shahab Junejo and Dr. Irshad for examination/re-examination.
5. I have considered the arguments rendered by the learned counsel for the parties and in my view in the present case the learned trial Judge has not taken into consideration the ingredients of Section 265-A Cr.P.C. particularly when it is murder case and Dr. Shahab has been examined without assistance of the public prosecutor which is in violation of the Section 265-A Cr.P.C. I am of the considered view that the learned trial Judge has examined the aforenamed Dr. Shahab Junejo without having the assistance of the public prosecutor and he ought to have sought services of the public prosecutor and no where it is mentioned that the public prosecutor was there. Accordingly the impugned order dated 10.7.2000 is set aside. The trial Court is directed to summon doctors namely and respectively Shahab and Irshad and they will be recalled and re-examined with the assistance of the public prosecutor. Accordingly the present Crl. Revision is accepted.
6. Cr. Rev. No 81/2000 stands as disposed of alongwith listed application.