BASHIRUDDIN AHMAD, J.---We need not go into the facts or the evidence against the appellants out of whom four have been sentenced to death and one to transportation for life for the murder of A.I Ahmad and Barkat in addition to imprisonment for one year each under section 324/149, P. P. C.
For causing simple hurt with sharp-pointed weapon to Mian Khan and rigorous imprisonment for two years each under section 148 of the Pakistan Penal Code, as at the very outset, Mr. Slim, learned counsel for the appellants assailed the judgment of the learned Additional Sessions Judge on the ground that the prosecution failed to prove strictly that Dr. Sajjad Ahmad Awan, who conducted the post-mortem examination was out of Pakistan, secondly, that Dr. Abdul Haq Malik, who was called as the 7th witness for the prosecution simply referred to the carbon copies of the post-mortem examination reports which are technically not evidence and, thirdly, that the cause of death could no be ascertained by the Court by looking at the post-mortem examina--petition reports, but had to be proved from the mouth of the doctor who held the autopsy. In view of the importance of the questions raised, the Assistant Advocate-General wanted time and accordingly the hearing was adjourned to 23-10-1969. On that date, we directed the Advocate-General to himself appear and assist the Court.
4. Raja Said Akbar Khan, Advocate-General, appeared and made an application under section 375 read with sections 428 and 561-A of the Code of Criminal Procedure, for recording additional evidence of Assistant Sub-Inspector Tufail Hussain to prove that Dr. Sajjad Ahmad Awan has been in England since 1967, where he is attending the Eye Specialist's Course and is not likely to be available in Pakistan in the near future. The Advocate-General also wished to examine Mr. Saeed Ahmad, Dispenser of Civil Hospital, Mandi Baha-ud-Din, who is acquainted with the handwriting of Dr. Sajjad Ahmad Awan in order to prove the original post-mortem examination reports.
The application was opposed by Mr. Slim, who contended that the provisions of section 375 or section 428 of the Code of Criminal Procedure did not apply in that the power to record additional evidence given to the High Court by section 375 of the Code of Criminal Procedure was confined to any point bearing upon the guilt or innocence of the convicted person and in so far as the provisions of section 428, Cr. P. Code are concerned, he relied on Ghulam Muhammad and others v. The State (PLD 1957 Lah. 263). In the reported case, the Division Bench who dealt with a similar matter reproduced from the judgment in, A.I v. Crown (PLD 1952 FC 71), the following observation of Cornelius, J.:- "A brief survey of reported cases discloses that, despite the wide terms in which the power is expressed, it has only been exercised where the additional evidence was either not available at the trial, or the party concerned was prevented from pro--ducing it either by circumstances beyond its control, or by reason of misunderstanding or mistake."
5. Learned Advocate-General, however, tried to meet the point by arguing that although the additional evidence was available at the trial stage, but the Public Prosecutor made a mistake in not producing it as a result of misunderstanding of correct legal position. We note that Dr. Abdul Haq Malik was called by the prosecution to prove the handwriting as well as the signatures of Dr. Sajjad Ahmad Awan, as he had worked under Dr. Abdul Haq Malik, who retired as D. H. O., Gujrat in the month of February 1967. Dr. Abdul Haq Malik was posted as the District Health Officer, Gujrat on August 6, 1966. Dr. Sajjad Ahmad Awan was posted as -Medical Officer, Civil Hospital, Mandi Baha- ud-Din at that time. He was directly subordinate to him in his capacity as a Medical Officer, Civil Hospital, Mandi Baha-ud-Din. Dr. Abdul Haq Malik deposed that Dr. Sajjad Ahmad Awan proceeded abroad after February 1967, and was still out of Pakistan. In the last line of his cross-examination, Dr. Abdul Haq Malik made a very significant admission. He said that he could not say with full confidence that Dr. Sajjad Ahmad Awan had not yet returned from abroad. In view of this admission on the part of Dr. Abdul Haq Malik, we feel that the trial Judge was in error in bringing on the record and using as, evidence the post-mortem examination reports which are in the handwriting of Dr. Sajjad Ahmad Awan. No attempt had been made to serve summons on Dr. Sajjad Ahmad Awan, whose state--ment had not been even recorded at the enquiry stage before the committing Magistrate. Mr. Slim, therefore, relied on Allahdittah v. The State (PLD 1958 SC (Pak.) 290) in support of the argument that the post-mortem examination reports were improperly brought on the record. There is force in the argument which must prevail in view of the Supreme Court decision in the aforesaid case. Their Lordships of the Supreme Court, while dealing with the point, observed the course of the judgment as under:- "It is also contended that both the trial Judge as well as the High Court were in error in accepting the evidence of a witness Lala, recorded in the committing Court, as evidence in the case, without Lala being produced and examined as the law ordinarily requires. The position regarding the admission of this evidence is as follows. The Investigating Police Officer, Sh. Niamatullah at the conclusion of his examination-in-Chief made the statement that `Lala' P. W. Could not be served in spite of my best efforts. He did not say that he himself attempted to serve summons upon Lala and this would indeed have been an extraordinary proceeding for a Sub-Inspector of Police, since the work is ordinarily entrusted to constables. No constable was produced to say that he had been given the summons to serve on Lala or that he had been unable to trace Lala so as to effect service upon him. The Public Prosecutor requested that Lala's evidence in the committing Court should be trans--feered to the record of the trial under section 33 of the Evidence Act. Counsel appearing for the accused persons stated that he had no objection if the request was granted, and thereupon the trial Judge made an order admitting the evidence in which he declared that Lala's evidence could not be procured `without delay and unnecessary adjournment' and he noted particularly that the defence counsel had no objection to the course which he was asked by the Public Prosecutor to take. Accordingly the evidence was read in the case as evidence against the accused. It is contended with great force that the trial Court misapplied section 33 of the Evidence Act and on this point reference was made to the observations of the Judicial Committee in the case of Chainchal Singh L R 72 I A 270. The action of the trial Judge was not supported before us by the Advocate-General of West Pakistan, and we consider that it was clearly not within the provisions of section 33 aforesaid . . . . "
We are in respectful agreement with the observations of their Lordships of the Supreme Court in the case, referred to above and hold that Dr. Abdul Haq Malik was not the proper person to prove that Dr. Sajjad Ahmad Awan was not available for evidence at the trial because Dr. Abdul Haq Malik was never entrusted with summons to be served on Dr. Sajjad Ahmad Awan. Had summons issued to Dr. Sajjad Ahmad Awan for his appearance as a witness at the trial then in that event the Police Officer entrusted with the service of summons would have been the proper person to depose that the witness was not available or that his attendance could not be procured without delay. In that situation, the trial Judge could resort to the provisions of section 33 of the Evidence Act to bring on the record the post-- mortem examination reports and refer to them after the same had been proved to be in the handwriting of Dr. Sajjad Ahmad Awan.
A Division Bench of this Court comprising Shabbir Ahmad and Ortcheson, JJ. In the case The State v. Sharif, etc. (PLD 1957 Lah. 669) while considering the question whether the reports of the doctor cannot be considered to be statements and are not, therefore, covered by clause (2) of section 32 of the evidence Act held as under:-- "The learned Sessions Judge appears to have read only a part of that clause because if he had read the whole of it he could not have failed to notice that it is not only statements that have been declared relevant by that clause but also entries and memoranda in books kept in the ordinary course of business or in the discharge of a professional duty. It is hardly open to question that the results of the examinations of the injured or dead persons were entered by the doctor in books kept in the ordinary course of business and it is clear that the record of the result of the examination of the injuries would be relevant under clause (2) of section 32 of the Evidence Act. The opinion expressed by the doctor in the reports with regard to the cause of death or the nature of weapons used and other similar matters would also be relevant because of section 45 of the Evidence Act as it cannot be doubted by anyone that the doctor is an expert for the purpose of that section. I might add that there is no justification for the opinion expressed by the learned Sessions Judge that the word `state--ment' occurring in section 32 of the Evidence Act means a state--ment made before a police officer, a Magistrate or a Judge. I am certain that in a number of cases the learned Sessions Judge has himself admitted in evidence dying declarations deposed to by persons who are neither police officers, Magistrates nor Judges, but if he has been refusing to admit those statements in evidence, he has been keeping out relevant evidence. The word `statement' occurring in section 32 of the Evidence Act has not the meaning which the learned Sessions Judge has ascribed to it in his letter to the Deputy Registrar, but only means anything said or written: I have no hesitation in declaring that even if any of the reports of the doctor is not covered by the latter part of clause (2) of section 32 of the Evidence Act, it would, be covered by the first part of that clause because it will be a statement about a relevant fact and, therefore, admissible in evidence under section 32 of the Evidence Act. . . "
We are, therefore, clear in our minds that section 32 of the Evidence Act applies even in the case of post-mortem examination reports which are covered by the word "statement" in the said Act, and the opinion of the doctor as regards the cause of death would be relevant under section 45, Evidence Act. We are further clear that the entries made by the doctor in his post---mortem examination reports can be proved for purposes of section h by calling a person, who is acquainted with the handwriting of a doctor.
6. We now proceed to examine whether this Court in the exercise of its powers under section 375 read with section 423, Cr. P. Code is competent to call for additional evidence or direct the same to be taken by the Court of Session. The Advocate---General cited M. P. Narayana Menon (AIR 1925 Mad. 106), Sarnam Singh and others v. Emperor (AIR 1935 All. 63), A.I and another v. Crown (PLD 1952 FC 71) and Jumma v. The State (AIR 1957 SC 469). On perusal of the reported cases, we are of the view that in dealing with an appeal in a murder case where there is also a reference to the High Court under section 374. Cr. P. Code, this Court is competent under section 428, Cr. P. Code to call for additional evidence and record or direct the same to be taken by the Court of Session. We deem it necessary to permit addi--tional evidence to be taken down in the instant case in the interest of justice. See A.I and another v. Crown and The Public Prosecutor Jeevarathnam (AIR 1948 Mad. 503).
7. We now address ourselves to the question whether a carbon copy of the post-mortem examination report is the primary or secondary evidence. In order to bring the post-mortem examination reports within the meaning of Explanation 2 to section. 62 .Of the Evidence Act, it has to be shown that the entire document with the signatures had been made by one uniform process.
The Calcutta High Court in Makhan Lail Sen Gupta v. The State (AIR 1958 Cal. 517) while dealing with the carbon copy of a search list which had certain ink writings on it held it to be inadmissible under section 62 of the Evidence Act. The reasoning which prevailed with the learned Judges in the reported case was that the carbon copy showed that even apart from the ink writing, the same had not been made by one uniform process and as such it did not satisfy the requirements of section 62 and other sections of Evidence Act. Another Bench of the same Court in Nityananda Roy v. Rashbehari Roy (AIR 1953 Cal. 456) observed as under:- "Carbon copies, particularly copies made on carbon paper used in this country, cannot generally be relied upon for purposes of comparison, because the impression made upon such carbon paper is generally irregular and blotched. "
Assuming that it was primary evidence and there was no irregularity or blotching in the carbon copies placed on the record in the instant case, which, of course, were simultaneously prepared with the post-mortem reports in the register of medico---legal cases maintained by the doctor, we would, nevertheless, as a matter of abundant caution consider it safer that the register should also be produced and perused for purpose of comparison with a view to obviate the possibility of any addition or alteration in the copies placed on the record. We would, in the instant case, direct the Additional Sessions Judge, Gujrat that he should send for the original register containing the post- mortem examination reports relating to the deceased persons in this case and get- the same proved from Mr. Saeed Ahmad, Dispenser, who is acquainted with the handwriting of Dr. Sajjad Ahmad Awan after strict proof that the latter is not available and that his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers as unreasonable. The evidence shall be taken down in the presence of the convicted persons and the evidence so recorded shall be certified to this Court within one month from the date of communication of this order.