' In the course of the perusal of the record it transpired, that the learned trial Judge had fallen into a grave error in admitting into evidence Exh. P. N/2 (post-mortem report about the alleged trunk of the dead body of Amir deceased), Exh. P. N. (post-mortem report about the leg allegedly severed from the dead body of Amir (deceased) and Exh. P. N/1 (the medico-legal report about the injuries suffered by Amir son of Shera (P. W. 6) without complying with the procedural formalities highlighted by the Superior Courts so often to prove the non-availability of a witness.
2. Dr. Tajammal Husain, who had drawn out these documents while posted as Medical Officer, Chiniot in the month of October 1972 had left the country for service in Saudi Arabia long before the commencement of the proceedings so his evidence could not be recorded by the Enquiry Magistrate although his name was included in the calendar of witnesses. He had, however examined Taj Din Dispenser of Chiniot Hospital as (P. W. 12) about the writings and signatures of these documents without producing the original registers of post-mortem and medico-legal reports for comparison of the entries made therein. No summon issued in the name of the doctor for attendance before the Enquiry Magistrate seems to have been returned as none is available on the relevant file. There is even no note in the diary order-sheet of his proceedings as to how Taj Din was examined as a witness in his place. The commitment order is also silent about it but the calendar of witnesses attached thereto included the name of Taj Din Dispenser.
3. A summon was, however, issued in the name of Dr. Tajammal Husain by the learned trial Judge which was entrusted to Foot Constable Zahid Husain, who had obtained a report at its back from the same Dispenser, namely, Taj Din and endorsed the same under his signatures. This report is to the effect that the doctor had left for Saudi Arabia and was not likely to return in the near future. Taj Din Dispenser had also been served with a summon for his evidence at the trial but the learned Judge had neither examined Taj Din nor Foot Constable Zahid Husain about it. There is no note of the learned Judge or statement of the Public Prosecutor as to why their evidence was not recorded.
The file, however, indicates that a summon was drawn out in the name of the doctor and handed over to Foot Constable Muhammad Saeed on 28th March 1975, who obtained a similar report on the same day at its back from Shakoor Ahmed Dispenser and the evidence of Foot Constable Muhammad Saeed and Shakoor Ahmad was recorded about ii by the learned trial Judge immediately thereafter on that very day.
' There is, however, no application or order of the learned trial Judge substituting Foot Constable Muhammad Saeed for Foot Constable Zahid Husain as also Dispenser Shakoor Ahmad for Taj Din. It is also surprising how the attendance of the two witnesses in the Court premises was manipulated to cover this slipshod arrangement. This haste in by-passing the procedure laid down in a plethora of authorities for admission of such documents under section 32/33 of the Evidence Act was certainly undesirable. The statements of these two witnesses, namely, Foot Constable Muhammad Saeed (P. W. 19) and Shakoor Ahmad Dispenser (P. W. 20) was, however, insufficient about the absence of the doctor from the country.
3-A. The hurried report and evidence of Foot Constable Muhammad Saeed (P. W. 19) was not based on his personal knowledge or the result of his search, for the said doctor as held in Allah Ditta's case (1) and Fazal Muhammad's case (2) persistently followed in a series of judgments of this Court like Shera and others v. The State (3), Muhammad Shafi and others v. The State (4) and Muhammad Siddique and others v. The State (5). According to the observations made in these judgments it was an imperative requirement of law about the fact that the witness (the doctor in the case) could not be found should be proved by direct evidence of the person who was entrusted with the service of the summons and it should be based on his personal knowledge or the result of his search for the witness in that attempt. In this case both the Foot Constables had contended themselves with the report of the two Dispensers only, one of whom, namely, Taj Din did not enter the witness-box while the other, namely, Shakoor Ahmad had conceded in cross- examination that he could not state if the doctor had returned to Pakistan or not by that time. He had also admitted that he had met him during the preceding year in Chiniot when he had come on leave to Pakistan. He had also disclosed that Jaranwala was the native town of this doctor. It could not be excluded from consideration that on return he might have settled in that town, but neither of the two Foot Constables or the Dispenser had claimed to have gone to that place to enquire about him. Their evidence was thus not a satisfactory proof of his non-availability and was in fact inconclusive.
4. Moreover learned trial Judge had passed no order before allowing the secondary evidence of Shakoor Ahmad Dispenser about the writing and the signatures of Dr. Tajammal Husain on the relevant documents Exh. P. N. And P. N/1.
5. In this case much emphasis was being laid on the ante-mortem nature of injury given in the post-mortem report (Exh. P. N) separating the head from the neck and the learned trial Judge had disagreed with his opinion without examination of the doctor on the points of Medical Jurisprudence taken into consideration by him in arriving at his conclusions about it. The alleged conflict in the oral evidence and post-mortem report had made it all the more necessary that the learned trial Judge had taken the necessary precautions in complying with the legal formalities about it. It was thus rightly urged that the learned trial Judge had shown undesirable haste in concluding the trial in complete disregard for the dictum of the Supreme Court referred to above and persistently adhered to in the decisions of this Court. I have, therefore,A, to remand the case on this short ground for recording of the requisite evidence; in accordance with law.
6. To be on the safe side learned trial Judge shall depute a Special Foot Constable for the service of a fresh summons on doctor Tajammal Husain, posted Medical Officer in Chiniot Civil Hospital on 28th October 1972 who would take the same to the office of the Director, Health Services Punjab and obtain an authentic report from there about his whereabouts. He shall also visit Jaranwala, the native town of this doctor and obtain information from his relatives as also the Lambardar of that place about him. If he has {{FOOT NOTE}}
(1) PLD 1958 SC (Pak.) 290 (2) 1970 P Cr. L J 858
(3) PLD 1970 Lab. 735 (4) PLD 1972 Lah. 661 {{FOOT NOTE}}
(5) 1974 P Cr. L J 180 returned from Saudi Arabia or there is any possibility of his visiting his home in the near future it would be appropriate to wait for his arrival in order to procure his own evidence in this case.
' If the report is that his attendance cannot be obtained without unnecessary expense and delay learned trial Judge after taking down the evidence of the Foot Constable specially deputed for this purpose shall make an order under his statement allowing the prosecution to produce secondary evidence for the formal proof of the writings and signatures of the said doctor in these documents.
Shakoor Ahmad Dispenser can be recalled with register containing the original reports and re- examined in this respect. The accused shall also be called upon to attend his Court for all these proceedings with a right to adduce any evidence in rebuttal. He shall thereafter submit the record to this Court with his certificate under section 428, Cr. P. C.