This is a revision petition under section 439, Cr. P. C. By Qamar son of Allah Yar petitioner against the order of Ch. Ghulam Hussain, Sessions Judge, Mianwali dated 11-4-1978 passed in Criminal Appeal No. 3 of 1978 whereby he dismissed his appeal and maintained his conviction and sentence under section 377, P. P. C.
2. The prosecution story in brief is that on 14-8-1974 Alain Sher P. W. 1 the complainant was passing through the sugarcane field of Muhammad Khan Talukdar on his way to call his uncle and father from the fields where they were working when the petitioner suddenly came out from the sugarcane field, forcibly took the complainant inside the sugarcane crop and started committing sodomy with him. Alam Sher P. W. 1 raised alarm on which the petitioner tried to shut his mouth by pressing his neck. However, his alarm attracted Ghulam Hussain P. W. 2 and Muhammad Khan P. W.
Who witnessed the . Occurrence. The petitioner fled away when he saw the witnesses had arrived.
3. At the trial, the prosecution produced Alam Sher P. W. 1 and Ghulam Hussain P. W. 2 in support of the ocular account, Mian Hayat Ali P. W. 5, Dispensar, Government Dispensary, Kundian, to prove the medico-legal report Exh. P. B. Prepared by Dr. Aftab Iqbal who had proceeded outside Pakistan, Faiz Muhammad H. C. P. W. 3 to prove arrest of the accused petitioner on 14-8-1974 and his presentation for medical examination that day and Hussain Ahmad Khan, A. S. I. P. W. 4 who recorded the formal F. I. R. Unfortunately, Ghulam Muhammad Akhtar, S. I., Incharge Police Post, Kundian could not be produced. Though a number of adjournments were granted by the learned Magistrate for the recording of his evidence, but he could not be produced and the learned Magistrate finally on 26-12-1977 bad to close the prosecution evidence.
4. The statement of the petitioner accused under section 342, Cr. P. C. Was recorded in detail. The petitioner stated that he was involved in this case due to enmity with the P. Ws. However, he produced no defence to rebut the prosecution case.
5: Mian Taj-ul-Malook Qureshi, M. I. C., Mianwali who tried the case by' his judgment dated 26-12- 1977 found the petitioner guilty of an offence under section 377, P. P. C: and sentenced him to suffer three years' R. I. In jail. The petitioner's appeal to the learned Sessions Judge, Mianwali, was rejected on 11-4-1978.
6. The petitioner has now come up in revision against the aforesaid order of the learned Sessions Judge, dated 11-4-1978.
7. When this petition came up for hearing in motion, the learned counsel for the petitioner contended that Ghulam Muhammad Akhtar S. I. Who recorded the statement of Alam Sher P. W. 1 and that of the other witnesses and conducted the investigation was not produced in evidence and he, therefore, could not be cross-examined, with the result that the petitioner's case was gravely prejudiced. He relied on Muhammad Shariff v. The State (1972 P Cr. L J1259). In view of this important legal question involved, I admitted the petition on 24-9-1976 and directed that the case should be placed for hearing in the week commencing, on 15-10-1978 as a notice case. The case is now before me for final arguments.
8. I have examined the case both on merits and on the legal issue raised by the learned counsel for the petitioner. Since T have decided to remand this case for re-trial, in terms of directions given in paragraph 15 of this judgment, I propose not to discuss the merits of the case, as that will prejudice the retrial. I will, therefore, only deal with the legal objection raised by the learned counsel for the petitioner, namely, the effect, of the non-production of Ghulam Muhammad Akhtar S. I. As a witness in the case.
9. With the assistance of the learned counsel for the petitioner and the State I have gone through the trial Court's record and find that Ghulam Muhammad Akhtar S. I. Who investigated the case was not produced. Frequent requests were made by the Prosecuting Inspector ,for adjournments to enable him to produce the said witness, but the learned trial Magistrate finally closed the case on 26-12-1977 after he found that a large number of adjournments already granted for his production had not borne fruit. It appears that for one date he ,was served but was absent and that on other numerous dates he was not served and bailable and non-bailable warrants were issued to enforce his attendance in Court, but everything said and done, no effective steps were taken to see that the warrants were served. The learned trial Magistrate should have moved the Superintendent of Police, through the District Magistrate, to ensure proper service of the warrants on the Investigating Officer concerned. It is regrettable that police officers who are under law responsible for ensuring service and compliance of the Court's processes should themselves show scant respect for time. In the present case, the Prosecuting Deputy Superintendent of Police should have moved his superior for assistance in enforcing the attendance of the Investigating Officer. The examination of an Investigating Officer, unless he has been won over or cannot be called for reasons given in section 32 of the Evidence Act, is both a legal and a moral duty of the prosecution, apart from all questions of propriety. The failure of the prosecution to examine him, other than for cogent reasons permissible in law, is not only a violation of a matter of a fundamental character as can lead to a mockery of the trial, but the most abhorrent injustice the prosecution can perpetrate. A practice so highly unfair and unethical should not be encouraged or countenanced. Trial Courts should strictly enforce the attendance of Investigating Officers to ensure their proper examination at all costs.
Failure on their part in examining them is a serious breach o a fundamental principle which can, in certain cases, lead to severe and irremediable injustice to the defence.
10. The learned counsel for the petitioner in support of his legal objection that the trial of the petitioner has been prejudiced by the nonproduction of the Investigating Officer has made two submissions. First, relying upon A. K. M. Reza v. The State (PLD 1958 Dacca 111) and Muhammad Sharif v. The State (1972 P Cr. L J 1259), it is stated that the mere non-production of the Investigating Officer has ipso facto created prejudice, sufficient for the petitioner's conviction and sentence to be set aside and a retrial ordered, if considered necessary. In short, it is suggested, that if an Investigating Officer is not produced at the trial, irrespective of the fact whether actual prejudice has arisen or not, it must be deemed that it has so arisen and is of such a nature as to warrant the accused's conviction and sentence to be set aside. Second, it is submitted that the Investigating Officer who had recorded the F.1. R. And the statements of the witnesses, had prepared the injury statement of Alam Sher (P. W. 1) before sending him for medical examination, had inspected the sugarcane crop from where he had taken blood-stained earth and had got the site-plan prepared, needed to be cross-examined on these matters, in addition to some others, which arose out of the cross-examination of Alam Sher (P. W. 1) and Ghulam Hussain (P. W. 2). It is contended that the failure of the prosecution to produce the Investigating Officer has prevented the defence from bringing out important contradictions and to dislodge the prosecution case, which has caused prejudice to the defence.
11. Taking up the first submission made by the learned counsel for the petitioner, before such a broad view, as urged by him, can be accepted, it is first necessary to examine -the two cases cited and see what is the basis of the principle as laid down therein. In Reza's case it was contended that as the Investigating Officer who conducted the investigation of the case and examined the witnesses bad not been examined at the trial, the omission had created immense prejudice to the appellant's case, inasmuch as he was not available to be questioned in respect of the statements trade to him by the witnesses. The learned Judges hearing that appeal, relying upon Momin-ud- Din and others v. The Crown (D L R 141) held that it was essential that the Investigating. Officer should have been examined to afford on opportunity to the defence to cross-examine him and that by reason of his non-examination, the , defence case had been prejudiced. They also remarked that the learned trial Judge had not informed the jury that they could draw an adverse inference against the prosecution for his non-examination, as was done in Moeen-ud-Din's case.
However, there is nothing in Reza's case to show whether the witnesses had been cross-examined as to the statements made by them to the Investigating Officer or what was the actual prejudice that had been caused to the defence by the non-examination of the Investigating Officer. In Muhammad Sharif's case, where also certain police officers who recorded the statements of the complainant and two Sub-Inspectors who conducted the investigation were not produced at the trial, the learned Single Judge, relying upon Reza's case, held that their non-production had prejudiced the trial as the defence had been prevented from bringing out the discrepancies, if any, in the statements of the prosecution witnesses. Again, in this case as well, there is nothing to show whether the witnesses had been crossexamined as to the contradictions between their statements made to the police during investigation and their evidence in Court or what actual prejudice had been caused to the defence. The observations in both Reza's case and Muhammad Sharif's case give the impression as if the mere nonproduction of the Investigating Offcer who has conducted the investigation in the case ipso facto creates grave prejudice, sufficient for the conviction and sentence to be set aside and a re-trial ordered, if considered necessary.
12. On general principles, where a witness is cross-examined and material contradictions between his evidence at the trial and his statement made to the Investigating Officer earlier are brought out on the record, it is they normal practice of a defence counsel to secure from the Investigating Officer admissions to show that such portions of the earlier statement of the said witness with which the witness has been confronted at the trial, have been so made by the witness and recorded correctly by him. From this practice has perhaps grown the general rule that if the Investigating Officer has appeared to give evidence, failure on the part of the defence to bring out such admissions is likely to cause prejudice and prevent such contradictions being accepted by the Court. But where an Investigating Officer is no produced by the prosecution to give evidence, thus preventing the defence; from securing his admissions to such portions of the earlier statement of a witness with which that witness has been confronted at the trial, the Court will obviously raise the necessary presumption under section 114 of the Evidence Act that those portions of the earlier statement were so recorded by the Investigating Officer. Such a position, however, will not lead to the rule that where an Investigating Officer is not produced it deprives the, defence of its . Right of shaking the credit of a prosecution witness by bringing out material contradictions between his evidence in Court and statements made to the Investigating Officer.
But such an inference may perhaps be treated as arising from observations made in Reza's case and Muhammad Sharif's case. Again, where no question or no material questions at all have been put to a witness in cross-examination to bring out material contradictions between his evidence in Court and his earlier statement made to the Investigating Officer during investigation, the mere non-production of the Investigating Officer cannot cause any prejudice to the defence. Yet again, there may be cases where an Investigating Officer) has witnessed a recovery or recorded a dying declaration or done something material and his non-production, in view of shaky, discrepant or unreliable evidence of the other witnesses on that matter, may prevent the defence from shaking his credit or bringing out material discrepancies and contradictions so as to defeat the prosecution cam In such a case, prejudice may arise and affect the defence. Such conflicting types of situations have not been discussed in Reza's case and Muhammad Sharif's cafe. On proper consideration, therefore, the true principle would appear to be that unless it can be shown or reasonably demonstrated from the material available on the record in a particular case that the presence of an Investigating Officer was necessary and actual prejudice has been caused by his non-appearance, to merely state that just because an Investigating Officer has not been produced, therefore, ipso facto prejudice has resulted, would be to lay down a principle which would - not only be further from the truth but deviating from good sense.
13. 1n the light of the principle laid down above, it now remains to be. Examined whether the defence of the petitioner has actually been prejudiced by the non-production of the Investigating Officer in the instant case. In the first place no objection was taken as to his non-production by the petitioner either before the trial Court or before the appellate Court. It has now been taken for the first time before this Court in revision. Second,. No questions were put to any of the witnesses in their crossexamination to bring out any contradiction between their evidence in Court and their statements to the Police Officer during investigation. Third and last, the petitioner in his statement under section 342, Cr. P. C., did not even remotely suggest that the Investigating Officer had falsely involved him in the case. In the instant case Ghulam Muhammad Akhtar S. I. Recorded the F. I. R.
And the statements of the witnesses, prepared the injury statement of. Alam Sher P. W. 1 before sending him for medical examination, inspected the sugarcane crop from where he took blood- stained earth and had the site plan prepared. Alam Sher P. W. 1 in cross-examination admitted that he .Neither knew nor had previously, seen Qamar petitioner before the occurrence; that he bad' come to known of the name of the petitioner later; that blood had fallen at the place of occurrence and had also besmeared his clothes which had been shown to the police and the doctor respectively; and that in his earlier statement recorded in Court on 5-5-1975, he had admitted that in-between the place of .Occurrence and where the other P. Ws. Were working, sugarcane crop was standing and that both the other eye-witnesses had kassis in their hands at the time of occurrence. Ghulam. Hussain P. W. 2 in cross-examination admitted that at the time of occurrence he and his companion Muhammad Khan had kassis with them; that -blood was oozing out from Alam Sher's anus; that they had seen the blood that had fallen at the spot which the police had taken into possession. It is, therefore, clear that had the Investigating Officer appeared to Court he would have been cross-examined as to how Alam Sher P. W. 1 had identified Qamar petitioner, where the occurrence actually took place, at which place the blood in the field had fallen, whether the blood-stained earth from the spot and the blood-stained clothes of the victim were recovered and,, if so, .What happened to them and whether sugarcane crop was standing in-between the place of occurrence and the place where Ghulam Hussain (P. W. 2) and Muhammad Khan (given up P. W.) were working. The, failure of the prosecution to produce the Investigating Officer has deprived the petitionbe of his only chance to bring out important material on these matters for the purposes of throwing a cloud of doubt on the prosecution case. This indeed has prejudiced the case of the defence. Prejudice does not only arise if the defence I deprived of the right of bringing out material contradictions between the evidence of witnesses in Court and the statements made by them to the investigating Officer. The fact that the defence is prevented from bringing out other material to disprove the prosecution story, can also cause serious prejudice to the defence. Each case must be Judged on its own facts. In the instant case, I have no doubt that the non-production of the Investigating Officer has prejudiced the case of the defence.
14. The only matter which requires attention now is whether the failure on the part of the petitioner to raise this objection at an earlier stage stands in his way to secure the reversal of his conviction.
Failure on the part of an accused to raise such an objection at an earlier stage can prevent him from seeking this relief, in view of the Explanation to section 537, Cr. P. C. But in view of the absence of any authoritative pronouncement of this High Court as regards the duty of the trial Judge to strictly ensure the attendance of Investigating Officers at the trial for purposes of their examination, the trial Court without seeking the assistance of the Superintendent of Police to have Investigating Officer served, closed the evidence. Since the delay was due to the negligence of the prosecution and was prejudicially affecting the petitioner's case, counsel for the petitioner perhaps did not raise any objection. Unfortunately, the petitioner at the appeal stage was without a counsel and, therefore, no objection could be taker! There either. In view of these peculiar features, the failure on the part of the petitioner to raise the objection earlier cannot be treated as fatal to prevent the petitioner from securing the reversal of his conviction.
15. For the foregoing reasons, this petition is accepted and the conviction and sentence of the petitioner are set aside and the case is remanded back to the lower Court for retrial from the point at which the trial Magistrate last closed the case of the prosecution. The retrial of al case from any point is permissible in law. If any authority is required ins this respect, Moonda v. The State (PLD 1958 SC (Pak.) 275) may be referred to with advantage.
15. This case shall, therefore, be sent to the learned District Magistrate, Mianwali, with the direction that it should be entrusted to any competent Magistrate (other than Mian Tajul Malook Quresbi, M. I.
C. Who last conducted the case) to retry the case from the point at which the trial Magistrate last closed the case of the prosecution and to examine the Investigating Officer. The trial Court will take adequate steps to see that Ghulam Muhammad Akhtar, S. 1. Is duly served and his evidence recorded. After this, the accused should be re-examined under section 342, Cr. P. C. And if he desires to produce evidence in defence, the same should be recorded. Thereafter, the trial Court should give its judgment in the case. In view of the fact that a year has passed by since the trial Court last decided the case in December 1977, the trial Court will take up this case day to day, subject to all just exceptions.
In view of the fact that the petitioner has been in jail for over a year and the retrial is likely to take some time, the petitioner is admitted to bail provided he furnishes a bond in the sum of Rs. 10,000 (Rupees ten thousand only) with two sureties each in the like amount to the satisfaction of the District Magistrate/Assistant Commissioner, Mianwali. The trial Court shall have power to cancel the bail for any breach thereof, at any time.