Petitioner being accused of case FIR No.990/22 dated 14.10.2022 registered u/s 302/392/411/201 PPC at police station Basti Malook District Multan, after getting his statement recorded under Section 342 of Cr.P.C. (the Code), had filed an application under Section 265F(7) of the Code for summoning of record of a 'receipt' from Laeeq Rafique Hospital, Bahawalpur Road, Multan in order to establish the fact that dead body of Tahir Hameed Qureshi, deceased was in fact received by him, and this fact would rule out the presence of prosecution witnesses at the crime scene at the relevant time; but such application was dismissed by learned Additional Sessions Judge, Multan by virtue of order dated 24.03.2025. Hence, this Criminal Revision.
2. Learned Counsel for the petitioner states such application was filed pursuant to direction of this Court issued on 13.03.2025 in Criminal Revision Petition No.76 of 2025, but learned trial Court has not entertained it on vague grounds, not recognized in law and as such flouted the direction of this Court, otherwise production of such 'receipt' was essential being relevant evidence. He further states that learned trial Court has rejected the application mainly on the ground that the receipt has already been got exhibited by the petitioner as Ex. DB in his statement under Section 342 of the Code; thus, no need to summon any witness for such purpose and name of any witness is also not mentioned in the application. He states that such finding of the Court is against the law on the subject because when any document is submitted before the Court, in response to a question relating to production of defence evidence, it is mere an indicator of intended defence of the accused which may or may not be taken thereafter; therefore at this stage considering this one sided exhibition by the trial Court as proper without hearing the objections of prosecution at later stage during the trial or proceedings in appeal before High Court in an adversarial system is nothing but a licence to kill the defence prospective. As such, petitioner has every right to produce the favourable evidence before the Court in a manner prescribed by the Code and the Qanun-e- Shahadat Order 1984 (the QSO 1984), which is an exhaustive Statute. 'Receipt' to be adduced in evidence is not a public document so as to legalize its admissibility by tendering the certified copy into the evidence as per Article 89 of the QSO 1984, rather being document of a private hospital could only be brought on record through the medium as requested by the petitioner.
3. Learned Counsel for the complainant/respondent states that once the document stands exhibited by the order of trial Court, its veracity cannot be questioned any further, and any improper admission of such evidence is protected under Article 162 of the QSO 1984. Thus, desperation of petitioner is beyond comprehension. Further states that even such receipt has been managed by the petitioner with the connivance of concerned doctor of private hospital, therefore, if any witness is summoned to produce record of such receipt, complainant must be provided an opportunity to cross examine him.
Learned Deputy Prosecutor General states that any person summoned by the Court to produce a document cannot be subjected to cross examination because he is not the witness of any party.
Thus, contention of learned counsel for the complainant/respondent can only be met when the record of receipt is produced through any authorized person of concerned hospital, the complainant/ respondent if suspects it a fake document can file application for summoning of author of such receipt as CW so as to arm the prosecution or facilitate the defence to question the witness about the veracity of said receipt.
In the light of contentions of the parties, I have gone into recitation of relevant provisions of law and peruse the record with the assistance of proponents of their stances.
Perusal of impugned order shows that it was passed with somewhat following observations; "That receipt has already been got exhibited by the petitioner as Ex, DB in his statement under section 342 Cr.P.C., recorded on 17.03.2025 and needful has been done, therefore now he cannot take shelter of section 265 F (7) Cr.P.C., particularly when application is ambiguous in the terms that name of the witness sought to be summoned is not mentioned therein. As per receipt on record it was issued by Dr. Muhammad Zakria, so it was incumbent upon the petitioner to mention that whether he want to summon the said doctor or the record keeper or someone else but the application is silent in this regard. It appears that petitioner has filed the application just to cause delay in the proceedings of the case which practice is not permissible and in this prospective I do not find any merits in this application which is accordingly dismissed."
Learned counsel for the petitioner urged that the petitioner was indicted in an unwitnessed occurrence without any evidence, otherwise on receiving information of murder of Tahir Hameed Qureshi he rushed to Laeeq Rafique Hospital along with complainant & PWs and in the presence of one Nasir received the dead body of said Tahir Hameed Qureshi. Record appended with this petition shows that the petitioner had put this contested fact during cross examination on PW-I (Siddique Umar) and PW-2 (Khizer Sheikh) and in his statement under section 342 of the Code. In such situation, the 'receipt' has become relevant evidence as per Article 24 of the QSO 1984 which says that facts not otherwise relevant are relevant, if they are inconsistent with any fact in issue or relevant fact; or if by themselves or in connection with other facts they make the existence or nonexistence of any fact in issue or relevant fact highly probable or improbable. Thus, the petitioner did have right to prove it through the mode and manner prescribed by law.
7. There is no cavil that Court is bound to summon any document requested by the defence under section 265-F(7) of the Code, unless it considers that the application is made for the purpose of vexation or delay or defeating the ends of justice. For summoning of any document, only the destination where it is lying or being kept is required to be written in the application filed for the purpose which has been done by the petitioner while mentioning the name of Laeeq Rafique Hospital with its address, Bahawalpur Road Multan; therefore, as per section 265 F (7) read with section 94 of the Code, Court was bound to issue notice to In-charge of said Hospital to produce the 'receipt' through any authorized person. In pursuance to Court order, when the authorized person appears in the Court with requisite document/record, the process mentioned in Article 134 of the QSO 1984 shall follow, which is as under;
134. Cross-examination of person called to produce a document: A person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness.
Statement of such authorized person shall not be recorded as PW, DW or CW because he is not the witness of any party rather appearing simply in representation of record keeper of the Hospital to depose about fact of availability/existence of document in the record. Such person would depose that as per hospital record, it is reflected that receipt was issued by, and received by, the persons named therein on such & such date, but if he is not the author of said receipt and also has not been summoned as a witness, he cannot be subjected to cross examination, which is the command of Article 134 of the QSO 1984, duly supported by cases reported as "M/s. SETTLERS (PVT.) LTD. Versus Mst. KHALIDA BEGUM" [1993 MLD 2310 (Karachi)];"Messrs. PETROBULK CARRIERS and another versus ABDUL WAHEED and another" [1997 ML D 2282 (Karachi)];"ABDUL KHAIQ versus SULTAN" [2001 YLR 2223 (Lahore)].
8. It is trite that mere marking a document for exhibition does not fulfill the requirement of its admissibility into evidence until it is proved through mode and manner prescribed in the QSO 1984.
Reliance in this respect is placed on a case reported as "Mst. AFIA AMBRINE Versus ADDITIONAL DISTRICT JUDGE, SIALKOT and 14 others" (PLD 2025 Lahore 124). In the present case the issue of 'receipt' requires proof of two facts, i.e., existence of receipt, and issuance of receipt by Laeeq Rafique Hospital, and it is for the trial Court to decide which fact is first to be proved as ordained under Article 131 (3) of the QSO 1984 which is as under;
131. Judge to decide as to admissibility of evidence:
(1) ..............................................
2) ........................................................... if the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.
Thus, Court had a discretion either to allow admission of receipt first into the evidence and then require evidence to prove its formal issuance from the hospital, or vice versa; therefore, observation of trial Court that by exhibiting 'receipt' in the statement under section 342 of the Code needful has been done, does not reflect correct application of law as per above Article.
In the light of law and facts referred above, impugned order is not based on true legal premise, and is also bereft of rationality, thus, fatal to the rights of petitioner if allows to perpetuate.
Consequently, this Criminal Revision is allowed and order impugned dated 24.03.2025 passed by learned Additional Sessions Judge, Multan is set aside.
It is directed that learned trial Court shall summon the record of Laeeq Rafique Hospital for production before the Court through any authorized person in order to verify the issuance of alleged receipt and then record the statement of person authorized by the hospital, to formalize the exhibition of such 'receipt'. If the complainant or prosecution suspects the receipt as forged or if got issued in connivance with any person/doctor, and prosecution or complainant has no other means or evidence to counter such 'receipt' then they can file an application for summoning the author of such receipt as CW. Parties are directed to appear before the trial Court on the date fixed in the case.