SOOBA Versus STATE

This is an appeal against the judgment, dated 1-8-1991 whereby the learned Additional Sessions Judge, Chiniot District Jhang convicted Sooba, Mamman son of Sooba, Mamman son of Noora and Mirza accused under section 302/34, P.P.C. and sentenced them to imprisonment for life each with fine of Rs.10,000 each or in default to undergo two years' rigorous imprisonment each. The fine, if so recovered, was ordered to be paid to the heirs of Muhammad Shaft deceased. Benefit of section 382-B, Cr.P.C. was also extended to the convicts. By the same judgment Ahman accused was acquitted.

2. The occurrence took place on 12-12-1986 at 5 p.m. in Chak No.209/G.B., Tehsil Chiniot, District Rang which was at a distance of about 12 miles from Police Station Bhowana where the F.I.R. Exh.P.B./1 was recorded by Arshad Javaid Sub-Inspector P.W.18 on the statement of Muhammad Tufail P.W.3 the brother of the deceased on 16-12-1986 at 12-10 noon.

3. The prosecution case as narrated in the F.I.R., in brief, is that Muhammad Tufail complainant alongwith Ali Ahmad P.W.6 was sitting in the house of one Fazil to enquire about his health, when Sooba, Mamman son of Sooba, Mamman son of Noora, Mirza and Ahman accused came there. Ahman was asked by his co-accused to bring Muhammad Shari deceased. When they saw Ahman bringing the deceased to the house of Fazil the aforementioned accused went out. Mamman son of Noora raised a "Lalkara" exhorting his co- accused not to spare the deceased. When Shari deceased tried to run away Ahman accused took him into a "Japha". Sooba accused inflicted a hatchet blow on the head of the deceased with its blunt side. Mamman son of Sooba gave a blow on the chest of the deceased with the butt of his gun. Shaft deceased fell down and while he was lying down Mamman son of Noora inflicted a "Dang blow and Mirza accused a "Sota" blow on him. When the complainant raised alarm Nazar P.W.4 and a few other residents of the village rushed to the place of occurrence and saw the occurrence. They also rescued Shaft deceased. While going away Mamman son of Noora snatched away the gun of Nazar P.W. while the complainant snatched the gun of Mamman son of Sooba from him. The motive for the occurrence was stated to be that there was a dispute between Mamman son of Noora and Sooba accused which was subsequently resolved through a compromise and the said accused suspected that it was Muhammad Shari deceased who was the creator of the said dispute.

4. After the completion of the investigation of the case all the five accused were challaned and put to trial. The prosecution examined, 11 witnesses in support of its case, including three eye-witnesses namely Muhammad Tufail P.W.3, Nazar Muhammad P.W.4 and Ali Ahmad P.W.6.

5. In their statements under section 342, Cr.P.C. the accused denied the allegations levelled against them.

6. Only Mamman son of Noora accused admitted to have participated in the occurrence but gave his own version which is stated in his statement under section 340(2), Cr.P.C.

"About 4-1/2 years back at evening time, I was present at the Baithak of Fazil soil of Gehna. Shari deceased was also present there. I and Muhammad Shari deceased were present there to get our dispute settled from Fazil son of Gehna. There was exchange of hot words between myself and Shaft deceased. Muhammad Shari gave me hatchet blow on my head and then he gave me other blows on different parts of my body from reverse side of hatchet. I raised alarm. I do not know if the accused present in the Court were present there or not. I was medically examined. Exh.DA. is my M.L.R. I do not know if Shari deceased was also injured during the occurrence. 1 gained senses in the hospital. It was agreed upon between the parties, that nobody would report to the police. When Muhammad Shari expired on 16-12-1986, then the complainant lodged F.I.R. against us."

7. After considering the material available on record the learned trial Court vide the impugned order convicted and sentenced Sooba, Mamman son of Sooba, Mamman son of Noora and Mirza accused as stated above. Ahman accused, however, was extended the benefit of doubt and was acquitted.

8. Feeling aggrieved the convicts/appellants have come up in appeal.

9. I have heard .the parties' learned counsel and have also gone through the record.

10. The post-mortem examination report which has been exhibited as Exh.P.O. shows that the post-mortem examination on the dead body of Muhammad Shari deceased was conducted on 17-12-1986 by Dr. Saleh Yousaf a Demonstrator in the King Edward Medical College, Lahore. The said doctor has not been examined and the post-mortem examination report and the diagrams Exhs.P.O./1 and P.O./2 showing the location of injuries were got proved through the secondary evidence of Maqbool Ahmad P.W.11 a record-keeper in the Department of Forensic King Edward Medical College, Lahore who had been working under Dr. Saleh Muhammad aforementioned and was stated to be conversant with his handwriting and signatures. He stated that Dr. Saleh Yousaf had proceeded abroad on ex-Pakistan leave and it was not known as to when he would return.

11. Learned counsel for the appellants has questioned the legality of the admission of the secondary evidence on the ground that the same is violative of Article 46 of the Qanun-e-Shahadat, 1984. He has argued that before allowing secondary evidence the learned trial Court should have recorded evidence to the effect that Dr. Saleh Yousaf could not be found or had become incapable of giving evidence, or his attendance could not be procured without an amount of delay or expense which under the circumstances of the case was unreasonable. In support of his contentions he has relied on Allah Ditta v. The State P L D 1958 SC (Pak.) 290, Fazal Muhammad and another v. The state 1970.S C M R 405, Hussain Bakhsh v. The State 1971 P Cr. L J 1331 (Lahore) and Muhammad Siddique and another v. The State 1974 P Cr. L J 180 (Lahore). The law laid down in the said precedents is to the effect that secondary evidence in such cases could only be allowed when the prosecution proves to the satisfaction of the Court that the doctor who conducted post-mortem examination was not available or had become incapable of giving evidence or his attendance could not be procured without an amount of delay or expense which in the circumstances of the case was unreasonable. It has been laid down that where any such evidence is allowed without complying with the provisions of section 32(2) of the Evidence Act (now Article 46 of the Qanun-e-Shahadat, 1984), such evidence shall be excluded from consideration.

12. Learned counsel for the State does not controvert this legal position and is of the view that in the present case the learned trial Court had erred in allowing secondary evidence without satisfying itself that the conditions laid down in Article 46 of the Qanun-e-Shahadat, 1984 had been fulfilled. In this view of the matter both the learned counsel request that the case be remanded under section 428, Cr.P.C. for recording medical evidence in accordance with the law and then resubmitting the record to this Court. This request is quite genuine and in accordance with the law. I, therefore, remand the case to the learned Additional Sessions Judge I, Chiniot, District Jhang with the following directions:

(i) Dr. Saleh Yousaf shall be summoned for his statement to prove the post-mortem examination report: etc. If it is reported that he is not available and is still on ex-Pakistan leave and is living abroad then the statement of the process-server to that effect shall be recorded.

(ii) When it is proved from the statement of the process-server that the doctor himself was not available the learned trial Court shall give an opportunity to the prosecution to prove the post-mortem examination report and the accompanying diagrams through secondary evidence,

(iii) Mamman son of Noora accused in his statement under section 340(2), Cr.P.C. has placed on record Exh.DA. a copy of his medico-legal report. Learned counsel for the appellant has stated that he was not permitted by the learned trial Court to prove that report by examining the concerned Medical Officer. The learned trial Court shall allow him reasonable opportunity to prove that report.

(iv) After recording the medical evidence, primary or secondary, the statements of the accused may be recorded with that regard, if necessary.

13. The record shall be sent back to the learned trial Court who shall resubmit the same to this Court within two months after doing the needful.

N.H.Q./S-438/L

Case remanded.