' According to the prosecution version the brief facts of the case are that Muhammad Tufail, complainant, belonged to village Basal, District Attack. However, since 1966 he was employed as a driver in Habib Bank Ltd. Lahore. At the relevant time his son Muhammad Ali, P. W., was also residing with him at Lahore as he was studying in the 9th class in Iqbal High School, Ghari Shaho, Lahore.
The other family members of the complainant were, however, residing in his native village Basal.
Mumtaz Khan, appellant also belonged to the same village Basal but was working as a driver of oil tanker to transport diesel or petroleum from Karachi to upcountry. During the days of occurrence the complainant, his son Muhammad Ali, P. W. And the appellant had come to their native village Basal to celebrate Eid-ul-Azha. The parties belonged to the same brotherhood and are also remotely related. It is alleged that on 4-11-1979 the appellant came across Muhammad Ali (P. W.) and offered him a lift up to Lahore. Since Muhammad All wanted to go back to Lahore, he accepted the lift offered by the accused who was taking his empty oil tanker to Karachi via Lahore. They started their journey from Basal at 4-00 p.m. When they reached Lahore some time during the night, Muhammad Ali, P. W. Asked the accused to drop him at Band Road but the latter refused to do so and continued the journey towards Multan after threatening Muhammad Ali (P. W.) that if he insisted to discontinue the journey he would kill him. They reached Multan during the same night.
The accused stopped his vehicle at an unfrequented place on the road leading to Karachi and committed sodomy on Muhammad Ali after giving him a beating. Thereafter they proceeded to Karachi where at the Oil Depot the accused filled up his tanker. Muhammad Ali, P. W. Was subjected to sodomy by the accused at Karachi also. On their return journey when the tanker reached Mianwali in the morning on 13-11-1979 it developed some mechanical defect. When the accused went to call some Mistari, Muhammad Ali, P. W. Slipped away and boarded a Bus and returned to his village Basal. He related the whole story to his mother who further conveyed the same to his father Muhammad Tufail, complainant, who on 14-11-1979 submitted a written application, Exh. P. A.
To the local Sub-Martial Law Administrator. On 15-11-1979 the Officer Incharge of the complaint cell endorsed the following remarks on the said application :- "Concerned Police Station to register the case and produce the chaltaa in.A. S. P. For On 22-3-1980 the following remarks were endorsed on the said complaint "Case be processed in Civil Court."
' The said complaint was sent to Police Statibn Pind Sultani where formal F. I. R. Exh. P. A/1 was recorded by H. C. Said Shah (P. W. 3). A. S. I. Muhammad Banaras, (P.W. 4) arrested the accused on 1-3-1980 and got him medically examined for his sexual fitness. The S. H. O. Zaheer Ahmad, (P. W. 5) is the Investigating Officer in this case, who after the completion of the investigation, challaned Mumtaz Khan, appellant under section 367/377, P. P. C. This challan was submitted in the Court of Mr. Muhammad Akmal Qureshi, Civil Judge 1st Class exercising powers under section 30 of the Code of Criminal Procedure,.Pindi Gheb.
2. In support of its case the prosecution produced the following witnesses before the learned Magistrate :- ' P. W. 1 Muhammad Tufail P. W. 2 Muhammad Ali ' P. W. 3 H. C. Said Shah ' P. W. 4 A. S. I. Muhammad Banaras ' P. W. 5 Dr. Faqir Muhammad Khan (F. M. Khan) P. W. 6 S. H.
0. Zaheer Ahmad
3. In defence the accused produced certain documents relating to Muhammad Ali's birth, school leaving certificates (Exhs. P. B., P. C.). The learned Magistrate vide his judgment dated 2.12-1980 came to the conclusion that as no offence or act under sections 367 or 377, P. P. C. Had been committed within. The local limits of the jurisdiction of that Court by the accused, therefore, the said offences could not be inquired into and tried by that Court in any manner. It was further observed that the prosecution had wrongly tried to prosecute the accused within the local limits of jurisdiction of that Court. Accordingly the learned Magistrate relieved the accused for the time being who might be legally prosecuted by the prosecution within the local limits of which Court the offences were committed by the accused. Against this order dated 2-12-1980 two revision petitions were filed before the Sessions Judge, Attock-one by the public prosecutor and the other by Muhammad Tufail, complainant. Vide order dated 18-8-1981, the learned Sessions Judge, accepted both the revision petitions, set aside the impugned order of the Magistrate dated 2-12-1980 alongwith entire proceedings taken in the case by the said Magistrate and directed S. H. O. Police Station Pind SUltani for sending up this case to the Court of Sessions through Ilaqa Magistrate because prima facie it was a case under section 12 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 (hereinafter referred to as the Ordinance) which offence was exclusively triable by a Court of Sessions, It was also held by the learned Sessions Judge that the impugned order of the learned Magistrate dated 2-12-1980 was not tenable at law not only on the ground that the Magistrate at Pindi Gheb did not lack territorial jurisdiction but also for the reason that he had no ordinary jurisdiction to try that case as its trial was within the exclusive competence of the Sessions Court, Attock. Accordingly the Police sent up the case to the Court of Sessions through the Ilaqa Magistrate. Mumtaz Khan accused was summoned by the Sessions Judge to face the trial. There is nothing on the record to show that the earlier order of the learned Sessions Judge dated 18-8-1981 was challenged before any competentscourt or forum,
5. Before the Court of Sessions the prosecution produced 7 witnesses. Muhammad Tufail, complainant appeared as P. W.
1. He is the father of the victim. He made an application Exh. P. A. To the Local Martial Law Authority at Attock and the same was ultimately forwarded to Police Station Pind Sultani to register a case.
Muhammad All (P. W. 2) has narrated how he went with the appellant in his oil tanker up to Lahore and then was further taken to Multan and then to Karachi and was subjected to sodomy during this journey. According to him on their return journey on 13-11-1979 near Mianwali the oil tanker broke down and when the appellant went to call some Mistari, Muhammad Ali, P. W. Slipped away and boarded a Bus and returned to his village Basal where he narrated the occurrence to his mother who further conveyed the same to his father Muhammad Tufail, complainant. On the receipt of Exh.
P. A. From the Martial Law Authority a formal . F. I. R. Exh, P. A./1 was registered by M. H. C. Said Shah (P. W. 3). A. S.
1. Muhammad Banaras (P. W. 4) arrested the accused on 1-31980 and got him medically examined.
S. H. O. Zaheer Ahmad (P. W. 5) partly investigated this case and recorded the statement of Muhammad Ali, P. W. And submitted the challan. Constable Muhammad Aslam (P. W. 6) was entrusted the summons, Exh. P. D. For the service of doctor Faqir Muhammad Khan (P. W). On 17-6- 1982 he went to Lahore to the house of the said Doctor who was not present. The son of the doctor came out of his house and told him that the doctor had gone to Quetta where the sister of the doctor had met with an accident. The son of the doctor gave a note to this effect duly signed by him. Vide order dated 19-6-1982 the learned Sessions Judge observed that since doctor F. M. Khan had retired from Government Service, could not be traced and his attendance could not be procured without unreasonable delay and expense as he originally belonged to Baluchistan. The Court therefore, ordered that a Compounder D. H. Q. Hospital, who was acquainted with the handwriting of the said doctor be summoned to prove the M. L. R. By way of secondary evidence under section 32 of the Evidence Act and adjourned the case for 21-6-1982. Accordingly Ghulam Hussain a Compounder D. H. Q. Hospital, Attock (P. W. 7) appeared as a witness and stated that Doctor F. M. Khan had remained posted as Medical Officer D. H. Q. Hospital for about 5 years and he had been working with him and therefore was acquainted with his handwriting and signatures.
After seeing M. L. R. Dated 14-11-1979 in respect of Muhammad Ali son of Muhammad Tufail, the witness statei that the report was in the hand of doctor F. M. Khan and was signed by him. On the said date doctor was working as M.
0. In D. H. Q. Hospital. The witness had brought the original M. L. R. As well which he produced for inspection of the Court. Ghulam Hussain compounder further stated that he had seen the statement in Urdu (Exh. P. F.) of doctor F. M. Khan dated 2-10-1980 recorded by Magistrate section 30, Pindi Gheb in the case State v. Mumtaz Khan which bore the signatures of the doctor (Exh. P.
F./1) and he identified the signatures of the doctor (Exh. P. F./1). The statement of the doctor was also recorded in English (Exh. P. F./2) which also bore his signatures.
7. The appellant in his statement recorded under section 342, Cr. P. C. Denied the prosecution allegations. He however admitted that he was a driver of oil tanker and had come to his village Basal for celebration of Eid on 4-11-1979 but he did take his vehicle to Karachi but left the village at 9-00 p.m. Alongwith Azam Khan cleaner via Mianwali-Muzaffargarh for Karachi. When asked why this case and why the P. Ws. Had deposed against him, he stated as under :- "1 am not aware. When on 14-11-1979, 1 returned to Basal, the father of Muhammad Ali told me that I had been taking away his son and he would prosecute me. I told him that I had not done so."
' The accused produced in evidence attendance report of Muhammad All attached to his school leaving certificate Exh. P. C. And produced no other defence.
8. The trial Court vide impugned judgment dated 10-7-1982 held that the statement of Muhammad Ali, P. W. Coupled with medical evidence proved the prosecution case beyond any shadow of doubt and consequently found the appellant guilty under section 12 of the Ordinance and sentenced him to undergo R. I. For 7 years and a fine of Rs, 2,000, or in default of payment of fine further R. I. For one year and whipping numbering 20 stripes.
9. Hence this appeal.
10. Have heard at length the counsel for the parties and have also perused the entire material available on the record. It is contended by Sardar Muhammad Ishaque Khan learned counsel for the appellant that the learned Sessions Judge was not legally justified to treat the medical evidence as corroboration of the statement of Muhammad Ali, P. W. At the relevant time, Doctor F.
M. Khan (Doctor Faqir Muhammad Khan) was working as Medical Officer in D. H. Q. Hospital, Attack.
On 14-11-1979, he had medically examined Muhammad Ali, P. W. And issued medico-legal report, Exh. P. E. The doctor had also taken swabs from the anus of the witness and sent them to the office of the Chemical Examiner for analysis along with the Shaiwar of the witness. Earlier when the case was tried by Mr. Akmal Qureshi, Magistrate with section 30 powers, this doctor was examined as P.
W. 5 on 2-10-1980. His statement was recorded in English as well as in Urdu (Exh. P. F.). The signatures of the doctor on his statement in Urdu are marked as Exh. P. F./1. The doctor also produced a carbon copy of his medico-legal report marked as Exh. P. W. 5/A and the sketch of injuries bearing his signatures marked as P. W. 5/A/1. Subsequently during the trial of this case by the learned Sessions Judge, Attock, this doctor had retired from service and had settled in Lahore.
The case was fixed for trial before the Sessions Judge on 12-6-1982 when the charge was framed, read and explained to the accused who pleaded not guilty and claimed trial. Accordingly on that day i,e, 12-6-1982 the statement of only one witness could be recorded when the Court time was over and the case was adjourned tb next day i,e, 13-6-1982 on which date for more P. Ws. Were examined and only doctor F. M. Khan remained to be examined, who was summoned for 19-6-1982.
Summonses, (Exh. P. D.) were issued to the said doctor and the same were entrusted to Muhammad Aslam, F. C. 413 (P. W. 6), for service. The said Muhammad Aslam, F. C. (P. W. 6), reached the house of the doctor at Lahore on 17-6-1982. The doctor was not personally present at that time. His son Qaisar Haroon came out of the house and informed the process-server i,e, Muhammad Aslam, P. W, that the doctor had gone to Quetta where doctor's sister had met with an accident. The son gave the following note to the process server :-{{URDU TEXT}} ' The process-server accordingly returned the summons with his following report, Exh. P. D./1 :- {{URDU TEXT}} ' On 19-6-1982 process-server Muhammad Aslam (P. W. 6) was examined by the trial Court. He made the following statement :- "I was entrusted the summons, Exh. P. D. For the service of Dr. F. M. Khan, P. W. On 17-6-1982, I went to Lahore to the house of the said doctor who was not present. The son of the doctor came out of his house and told me that he was not available and had gone to Quetta and it is not known as to when he would return. The report on the back of the said summons is Exh. P.D./1 which is in my hand."
' The trial Court on the same day i,e, 19-6-1982 passed the following order and summoned a Compounder from D. H. Q. Hospital, Attock, who was acquainted with the handwriting of the doctor to prove the M. L. R. By way of secondary evidence under section 32, Evidence Act and adjourned the case for 21-6-1982 :- "Presence as before.
' F. C. Muhammad Aslam states that he has not been able to locate Dr. F. M. Khan despite efforts. His statement has been recorded. From his report and statement it appears that the doctor who is said to have retired from Government service, cannot be traced and his attendance cannot be procured without unreasonable delay and expense as he originally belongs to Baluchistan.
Therefore a Compounder, D. H. Q. Hospital, who is acquainted with his handwriting, be summoned to prove the M. L. R. By way of secondary evidence under section 32, Evidence Act for 21-6-1982."
' On that day i,e, 21-6-1982 Ghulam Hussain Compounder D. H. Q. Hospital, Attock was examined as P. W.
7. According to this witness doctor F. M. Khan had remained posted as Medical Officer D. H. Q.
Hospital, Attock for about 5 years and he had been working with him and therefore was acquainted with his handwriting and signatures. After seeing the M.L.R. Dated 14-11-1979 in respect of Muhammad Ali son of Muhammad Tufail, this witness stated that the said report was in the hand of doctor F. M. Khan and was signed by him and on that date he was working as Medical Officer in D.
H. Q. Hospital, Attock. The witness also brought the original M. L. R. For the inspection of the Court.
The said report, Exh. P. F. Was the correct copy of the original. The witness further deposed that the statement of doctor F. M. Khan dated 2-10-1980 recorded by M. Section 30 Pindi Gheb in the case "State v. Mumtaz" also bore the signatures of said doctor and was marked as P. F. And he identified the doctor's signatures on it as Exh. P. F./1. The statement of the doctor was in Urdu as well as in English and both bore his signatures.
12. It is in the above factual background that we have to determine the admissibility and the legal value of the statement of doctor F. M. Khan recorded by Mr. Akmal Qureshi Magistrate Section 30 on 2-10-1980 and M. L. R. Produced by him before that Court.
13. As mentioned above against the order of Mr. Akmal Qureshi M. S. 30 dated 21-2-1980 two revision petitions were filed before the Sessions Judge, Attock who vide order dated 18-8-1981 accepted both the revision petitions, set aside the order of the Magistrate dated 2-12-198 alongwith entire proceedings taken in the case by the said Magistrate becaus prima facie it was a case under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which offence was exclusively triable by a Court of Sessions. This order of the Sessions Judge dated 18-8-1981 attained finality and still hold the field as it was not challenged by any party before a A competent Court.
Even otherwise it is not denied that the said Offence of Zina (Enforcement of Hudood) Ordinance No, VII of 1979 came into force on the 12th day of Rabiul Awwal of 1399 Hijri that is 10th day of February, 1979 and the present occurrence had taken place on 4-11-1979, much after the promulgation of the said Ordinance. It is further not denied that the offences covered by the said Ordinance are exclusively triable by the Court of Sessions. The result is that Mr. Akmal Qureshi, Magistrate had no jurisdiction to try the present case. Hence in these circumstances it can safely be held that the earlier proceedings of this case before Mr. Akmal Qureshi, Magistrate, who had no jurisdiction to entertain them, were coratn non judice and consequently B the statement of Dr. F. M.
Khan recorded by the said Magistrate in those proceedings, cannot be used under section 33 of the Evidence Act, in subsequent trial of the accused by the Sessions Judge. It is further held that proceedings before a Court (Mr. Akmal Qureshi, Magistrate) which lacked jurisdiction for any reason to entertain them, cannot be termed as 'judicial proceedings' within the meaning of section 33 of the Evidence Act and consequently the statement of Dr. F. M. Khan recorded in the said proceedings before Mr. Akmal Qureshi, Magistrate, would be inadmissible in evidence under section 33 of the Evidence Act. Thus, viewed from any angle the earlier statement of Dr. F. M. Khan recorded by Mr. Akmal Qureshi Magistrate could not be used in subsequent trial before the Sessions Judge. That statement was clearly inadmissible in evidence and not covered by the provisions of section 33 of the Evidence Act.
14. The statement of Dr. F. M. Khan suffers from another legal infirmity. As mentioned above this doctor was not examined as a witness during the trial by the Sessions Judge but his earlier statement recorded by Mr. Akmal Qureshi, Magistrate has been transferred to the Sessions file under section 33 of the Evidence Act. The question which arises for consideration is whether before producing secondary evidence, there was legal justification to dispense with the primary evidence of this doctor or not. It is an elementary right of an accused person or a litigant in a civil suit that a witness who is to depose against him, should give his evidence before the Court trying the case/suit which then has the opportunity of seeing that witness and observing his demeanour and can thus form a better opinion as to his reliability than is possible from mere reading statement/deposition of that witness. In the instant case doctor F. M. Khan was summoned by the Sessions Judge vide order dated 13-6-1982 when the process-server was informed by the son of the doctor that the latter had gone to Quetta to see his sister who met with an accident. The son gave in writing that some other date after the Eid may be given to enable his father to give evidence. In the case. However on 19-6-1982, the trial Court without affording any further opportunity to the witness, decided to summon a Compounder from D. H. Q. Hospital who was acquainted with the handwriting of the doctor to prove his statement and the M. L. R. By way of secondary evidence under section 33 of the Evidence Act. It was observed by the learned Sessions Judge in the order dated 19-6-1982 that F. C. Muhammad Aslam had stated that he had not been able to locate Dr. F. M. Khan despite efforts. From the report and the statement of this witness the Court drew the inference that the doctor who was said to have been retired from Government service could not be traced and his attendance could not be procured without unreasonable delay and expense as he ordinarily belonged to Baluchistan. According to the learned defence counsel these observations of the learned Sessions Judge are not borne out by the record-rather they are contrary to the record. The address of the doctor after his retirement was known and the process- server reached the correct residence of the doctor in Lahore but unfortunately on that particular day he was not available at his residence as he had gone to Quetta to see his sister who was involved in some accident. Thus his going to Quetta was temporary and he could easily be available if another opportunity was given to him. Summons were issued only once and the report of the process-server reproduced above shows that at that particular moment the doctor was not present at his residence and his son informed the process server that the doctor had gone to Quetta temporarily. Thus, the observations of the trial Court in the order dated 19-6-1982 that Dr. F.
M. Khan could not be traced and his attendance could not be procured without unreasonable delay or expense as ordinarily he belongs to Baluchistan, was factually incorrect. In fact his whereabouts were known and had been correctly traced out by the process-server. As regards the question of "unreasonable delay and expense" it is clear that no such unreasonable delay or expense was involved in the case. Their Lordships of the Judicial Committee of the Privy Council in Chainchal Singh's case (1) have laid down the principle in this behalf in the following words :- "Where it is desired to have recourse to section 33 of the Evidence Act on the ground that a witness is incapable of giving evidence that fact must be proved, and proved strictly. It is an elementary right of an accused person, or a litigant in a civil suit, that a witness who is to testify against him should give his evidence before the Court trying the case, which then has the opportunity of seeing the witness and observing his demeanour and can thus form a far better opinion as to his reliability than is possible from reading a statement or deposition. It is necessary that provision should be made for exceptional cases where it is impossible for the witness to be before the Court, and it is only by a statutory provision that this can be achieved. But the Court must be careful to see that the conditions on which the statute permits previous evidence given by the witness to be read are strictly proved. In a civil case a party can, if he chooses, waive the proof, but in a criminal case strict proof ought to be given that the witness is incapable of giving evidence."
15. The above authority was followed by the Federal Court of Pakistan in Aminul Haque's case (2) by observing as under :- "Reliance was placed in this connection on the case of Chainchal Singh v. Emperor A 1 R 1946 P C 1. It was held in this case by the Judicial Committee of the Privy Council that when evidence given by a witness in a judicial proceeding is sought to {{FOOTNOTE}}
(1) 72 I A 270 (2) PLD 1952 FC 63 ' be used under section 33 in a subsequent judicial proceeding or in a later stage of the same judicial proceeding on the ground that the witness is incapable of giving the evidence that fact must be proved strictly. In a civil case, a party can, if it chooses, waive the proof but in a criminal case strict proof ought to be given that the witness is incapable of giving evidence. This proof must be all the more stringent where the witness was not cross-examined in Committing Magistrates's Court by reason of the accused not having been represented by counsel. The fact that the counsel for the accused consented to the evidence of the witness being read under section 33 of the Sessions Court does not do away with the necessity of the Court being satisfied by proof that the witness was incapable of giving evidence."
16. The above authority was also followed in PLD 1958 SC 290 and 392. From the case law cited by the parties on this point it can be laid down that provisions of section 33 of the Evidence Act are mandatory and in criminal case strict proof ought to be given about the inability or incapacity of the witness and even the consent of an accused person or his counsel cannot cure such irregularity. However in a civil case a party can, if he chooses, waive the proof in such cases. The Court must satisfy itself of the reasonable and diligent search having been made to make the witness available. Statement of a witness recorded by a Magistrate can be transferred to Sessions file under section 33 of the Evidence Act only if conditions laid down in that section have been strictly complied with. The expression "incapable of giving evidence" must be proved with strictness. Now let us apply this principle to the facts of the instant case. From the perusal of the relevant material placed on the record it is clear that no satisfactory evidence was led by the prosecution to show that Dr. F. M. Khan could not be found or his attendance could not be procured without unreasonable delay or expense. The prosecution has miserably failed to prove "unreasonable delay" or "expense" in this case to produce Dr. F. M. Khan before the trial Court. The result is that the statement of doctor F. M. Khan recorded by Mr. Akmal Qureshi, Magistrate on 2-10- 1980 could not be legally transferred to the Sessions file and therefore could not be used as corroboration against the appellant.
17. As regards the medico-legal report, Exh. P. E. Conducted by doctor F. M. Khan, the prosecution cannot utilize the same against the appellant. This could be admitted into evidence under section 32 of the Evidence Act, being a statement which the doctor had prepared in the discharge of his professional duty. Here also the prosecution faces the same difficulty. Before relying upon the M. L.
R. Conducted by Doctor F. M. Khan the prosecution had to prove that the said doctor could not be found or his attendance could not be procured without unreasonable delay or expense. Reliance in this behalf can safely be placed upon the following observations of their Lordships of the Supreme Court in Fazal Muhammad's case :- "The post-mortem reports prepared by Dr. Muhammad Azhar could be admitted into evidence under. Section 32(2) of the Evidence Act, being statements which he had prepared in the discharge of his professional duty, provided it was shown that the witness could not be found or his attendance could not be procured without unreasonable delay or expense."
' In the instant case the position of Dr. F. M. Khan is practically the same. I have already held above that the prosecution failed to prove that the' attendance of doctor F. M. Khan could not be procured without unreasonable delay or expense.
18. After excluding from consideration the statement of doctor F. M. Khan and the medico-legal report, ,Exh. P. E. There is no other piece of evidence, which can corroborate the statement of Muhammad Ali, P. W. His solitary statement in the circumstances of the case, is not sufficient to maintain the conviction of the appellant as he has been contradicted on material points by his father Muhammad Tufail, complainant and other circumstances of the case.
19. For the foregoing reasons I accept this appeal, set aside the conviction and sentences awarded to Mumtaz Khan, appellant by the trial Court and l0 acquit him of the charge. He shall be released1