SARWAR SHAKIR Versus STATE
Appellant Sarwar Shakir, a police constable and his brother Ashraf Masih were tried by Mr. Arshad Noor Khan, Ist Additional Sessions Judge (East) Karachi, for the offence under section 302/34, P.P.C, who found co -accused Ashraf Masih not guilty and acquitted him. The appellant was, however, found guilty for the offence under section 304, P.P.C. and sentenced to suffer R.I. for seven years and to pay a fine of Rs.5,000 or in default to suffer R.I. for six months. By this appeal filed under section 410, Cr.P.C. the appellant has challenged his conviction and sentence awarded on 29‑9‑1991.
2. This regretable episode is a sequel, to an ordinary occurrence. Appellant Sarwar Shakir had borrowed an audio cassette from P.W Pervaiz son of Sadique Masih who on 2‑6‑1988 at about 6 p.m. asked the appellant to return it, which annoyed him and he flew into passion, resulting into exchange of abuses. The commotion attracted Sadique Masih who tried to intervene, whereupon he was given mattock (BELCHA) blows. Deceased Mst. Maryam daughter of Sadique Masih and Mst. Khursheed wife of Sadique Masih also rushed to the spot' and they too were given injuries. It is the case of the prosecution that Mst. Maryam was given hammer blow on ‑her head, whereupon she fell down. On the same day complainant Sadique Masih went to Malir P.S, where his report was recorded in station diary (ROZNAMCHA). Mst. Maryam was taken to Jinnah Post‑Graduate Medical Centre, Karachi, where she died on the following day and it was thereafter that on 3‑6‑1988 the entry of station diary was incorporated in 154, Cr.P.C. book. After usual investigation the appellant and his brother co‑accused Ashraf Masih (since acquitted) were sent up to stand trial.
3. The appellant pleaded not guilty to the charge framed against him and co‑accused Ashraf Masih for the offence under section 302/34, P.P.C., and claimed a trial. At the trial the prosecution examined Sadique Masih (P.W.1), Sadique Nawab (P.W.2), Sardar Masih (P.W.3), Pervaiz (P.W.4), Mst. Khursheed (P.W.5), Habibullah Tapedar (P.W.6), Jawed (P.W.7), Sardar Khan S.I.P. (P.W.8) and Allauddin Abbasi S.H.O (P.W.9).
4. The appellant met the charge with a denial. He did not step into the witness box. No witness in defence was also examined by him.
5. On the assessment of evidence available on record, the learned Additional Sessions Judge found the appellant guilty for the offence under section 304, P.P.C, and convicted him accordingly, giving rise to this appeal.
6. I have heard Mr. I. I. Sulernan, learned counsel for the appellant and Mr.S.ZA. Qureshi, learned counsel for the State. I have also examined the record of this case carefully. Before examining the evidence adduced in support of the prosecution version, I propose to examine following legal points that have been urged in the course of arguments:‑
(i) That the charge framed against the appellant was defective. which disclosed the name of deceased as Sadique Masih, although her name was Mst. Maryam, which caused "serious prejudice to the appellant.
(ii) That the medical certificates were brought on record through Allauddin Abbasi S.H.O (P.W.9), without examining the concerned Medical Officer causing serious prejudice to the appellant:
7. As regards the first legal objection, the learned counsel for the. appellant has very little to say. The object of framing a charge is to afford the defence an opportunity to concentrate its attention on the case that he has to meet. The rule of law is that if any person is misled in the defence by the absence of any charge or an error on the charge a retrial is to be ordered. The case of Malin Gope and another v. Emperor, reported in AIR 1929 Patna 712, is clear on this point. As observed in Pagla Baba and another v. The State reported in AIR 1957 Orissa 130, a trial is not vitiated by reason of the fact that the charge, as framed, is not complete, if no prejudice was caused to the accused. This question was also examined in the case of Kamakhya Prasad) Agarwalla and others v. The State, reported in AIR 1957 Assam 39, wherein it was observed:‑
" With a view to understand whether there was prejudice, we should examine the circumstances of the case. It has been held in a recent decision of the Supreme Court that to say that there was prejudice, is not enough, it should further be pointed out as to how or is what manner the accused was prejudiced."
8. The perusal of the record shows that the appellant knew that he was facing the charge of murder of Mst. Maryam and not of Sadique Masih. The suggestions made to the witnesses in cross‑examination are self‑explanatory. It will, therefore, be very difficult to sustain a plea of prejudice unless the Court is told where the shoe pinches. In fact no such plea was raised by the appellant before the trial Court and in the memo of appeal filed by him before this Court. The objection taken by learned counsel for the appellant about the defective charge during the course of his address is thus devoid of force.
9. The second contention about the value of medical certificates (Exh.25 l to Exh.27), produced by Allauddin Abbasi S.H.O (P.W.9) seems to be welt founded. "A medical certificate by itself is not a substantive or primary evidence particularly when it is relied upon to prove the opinion it contains. It is the opinion of the medical expert itself in such cases that is relevant. The certificate is only a record made by him which at best would show that he has recorded his view of opinion or made an entry as regards the injuries seen by him immediately after or at the time of his examination. At best, such 'a certificate would have a corroborative value but it is not a substantive piece of evidence from which an opinion of the medical expert can be proved or p established." (See Field's Expert Evidence, Third Edition). In the case of Imperator v. Ahila Manaji, No.1 and another, reported in AIR 1923 Bombay. 183, it was made clear that the certificate of the Professor of Anatomy is not per se admissible in evidence. This aspect of the case was also considered in the case of Coral Indria Gonsalves, falsely called Iswariah v. Joseph Prabhakar Iswariah, reported in AIR 1953 Mad. 858, wherein it was observed:‑
"Certificates, like these, do not prove themselves. They must be strictly proved by doctor who issues them. He has to state what tests he, carried out to arrive at his conclusion and must stand cross- examination and convince the Court that his conclusion about the potency is correct. Here, not even an attempt has been made to examine him, the respondent, having given up his defence, obviously because it was hopeless."
10. This view was followed in the case of Municipal Corporation of City of Ahmedabad v. Gandhi Shantilal Girdharlal and another, reported in 1961 Gujarat 196, and it was held that what is made relevant under section 45 of the Evidence Ad, 1872, is the opinion of the medical expert or any other expert and not the document in which he has recorded his opinion. The certificate in itself is not an admissible document.
11. The perusal of the record further reveals 'that there are different , versions about the crime weapon and in such a situation the examination of concerned Medical Officer before the Court was essential. Unfortunately the medical examiner was not cited as a witness. The learned prosecutor and the Additional Sessions Judge also took no pains to summon him for the purpose of evidence. On the face of such a clear pronouncement, the learned Additional Sessions Judge had gone wrong in relying upon the medical certificates (Exh.25 to Exh.27) without examining the Medical Officer. The conclusion drawn by him on the basis of these certificates is patently I erroneous.
12. Faced with this situation, the learned . counsel for the State has conceded and I think rightly, that proper course for me to adopt is to remand the case for retrial from the stage of framing of charge which is defective. Without going into the merits of the case, I would accept the appeal, set aside the conviction and sentence of the appellant and remand the cast for retrial from the stage it became irregular, namely from the drawing up of the charge. F The trial Judge shall also examine the concerned Medical Officer to prove the contents of medical certificates (Exh.25 to Exh.27). Since the charge will be refrained the proceedings will start de novo. The case shall go to Session Judge (East) Karachi, who shall either try it himself or make it over to any of the Additional Sessions Judge working in District East, other than Mr. Arshad Noor Khan, I, Additional Sessions Judge who has already formed his opinion. As the appellant is in custody it will be appreciated if the case is disposed of expeditiously.
N.H.Q./S‑851/K Case remanded.