P L D 1988 Karachi 374 (PLP)

SAJJAD ALI SHAH, J.‑‑ This acquittal appeal is filed by State against impugned judgment dated 2‑11‑1985 passed by Mr. Abdul Mateen Khan, IIIrd Additional Sessions Judge (West), Karachi, whereby respondent Muhammad Zakir Khan Changezi has been acquitted in a case a/s. 307, P.P.C. Prosecution case is that on 6‑11‑1978 at 6.30 p. m. Muhammad Zakir Khan Changezi fired shots from his licensed revolver at Saleem Ikram complainant who became injured. Jawed Ikram brother of complainant came to the rescue but he was also fired upon and injured by Changezi. Complainant and respondent have cold drink shops near each other in Yousuf Plaza, Federal 'B' Area, Karachi. Before the incident minor boy Shahid Ikram brother of complainant was sweeping the floor and dust particles went into the shop of respondent Changezi upon which Muzahir son of Changezi abused minor boy filthily, which was objected to by Saleem Ikram and this resulted into exchange of harsh words between them. Respondent Changezi was in the shop and he came out and fired shots from his revolver first at Saleem Ikram and then at Jawed Ikram. Incident was seen by several eye‑witnesses and both injured persons were removed to the hospital. Three shots were fired at complainant, two of which hit him in the chest and third one on his back when he attempted. to go away from there. Jawed Ikram also became injured. In the trial Court prosecution examined ten witnesses; out of whom six are eye‑witnesses and from them two are injured eye witnesses. P.W.10 Muhammad Sadiq, ASI has investigated the case. All eye‑witnesses have supported the case and none of them is declared hostile. There is medical evidence. Crime empties were recovered from the spot and licensed revolver of respondent Changezi was also secured. After evaluation of evidence, learned trial Judge has come to the conclusion that the incident had not occurred in the manner and at the place as alleged by the prosecution and further that the case of the prosecution is doubtful. In the impugned judgment in paragraph 12 learned trial Judge has observed that the Investigating Officer was dishonest and he did not produce two very important documents which are entries Nos.50 and 63 recorded in the Station Diary of P.S Jauherabad on 6‑11‑1978. It is further observed that on account of non‑production of these two entries, statement of complainant Saleem Iqbal has come under great attack from the defence. We are reproducing relevant portion from paragraph 12 of the impugned judgment as under: "I may state at the very outset that the main feature of ambiguity and doubt in the prosecution case is that the investigation conducted by . Muhammad Sadiq was not honest via ,and suffers from irregularities. The first and the foremost is that entry No.50 in Roznamcha which was allegedly made‑ by him on receiving telephonic message from Abbasi Shaheed Hospital was not produced by prosecution although examination of Muhammad Sadiq was stopped by the Court and he was directed to bring the entry yet he reported that Roznamcha was missing. Accordingly the entry of his return to P.S. after investigation was also not produced by the prosecution on the same plea that Roznamcha was missing. Importance va the entries Nos.50 and 63 of the return of 1.0. to the Police Station is that the statement of Saleem Ikram is under great attack from the defence. Learned defence counsel argued that this statement a/s. 154, Cr.P.C. was either not made by Saleem Ikram or it was made after due deliberation and conspiracy between the police and complainant party. According to Muhammad Sadiq, he received telephonic message from Abbasi Shaheed Hospital on 6‑11‑1978 at about 7 p.m. and after making entry No.50 in Roznamcha he went to Abbasi Shaheed Hospital where he recorded statement of Saleem Ikram which is Exh. ‑6." In the context of what is reproduced above from the impugned judgment, reference is to be made to the deposition of P.W.10 Muhammad Sadiq, A . S. I. who has investigated the case. He was examined in the trial Court on 14‑3‑1984 and then 6‑4‑1985. On 6‑4‑1985 while cross‑examination was in progress, this witness was directed to bring entry No.50. On the next day he appeared again and his deposition was continued in which he stated that S.H.O. Jauherabad had reported that entry No.50 was not available and was not traceable. He produced attested copy of said entry as Exh.

32. We pause here to consider as to how could an attested copy of an entry be produced when in the same breath assertion is made that the original is not traceable. scrutiny of Exh. 32 available in the record shows that this copy was prepared by S.H.O, Jauherabad and was attested by him on 26‑5‑1985, which is to the same date on which witness appeared in the Court for continuation of his evidence and at the. end of this document, it is mentioned that the Station Diary is not available but copy was made from F.I.R. Now if entries are available in F.I.R., why was the need felt for looking into the original in the Station Diary. It is further stated in the deposition that it is correct that there is no name of accused mentioned in the entry but place of incident and number of injuries on injured persons have been shown in the entry. It is also stated in. the entry that permission had bean taken in writing from the Medical Officer for recording statement of injured Saleem Ikram. In the evidence 1.0. went on further to testify that after return to the P.S., he again made entry No.63 in the Station Diary. Going back to the impugned judgment and its paragraph 12, we find that 1.0. was not able to produce entry No.63 as well on the same ground on which he did not produce entry No.50 and both these entries were considered by the learned trial Judge to be very important in the absence of which statement of Saleem Ikram came under heavy attack from the defence. It is very clear from the record and the impugned judgment that on only one occasion i.e. 6‑4‑1985 chance ;vas given to 1.0. to bring the original entries 50 and 63 which he could not do for the reason that the same were not traceable at the Police Station. We would like to observe here that if these entries were so important as considered by the learned trial Judge then he should have made more efforts as allowed under law to get hold of these entries in the original Station Diary. Normal knowledge and procedure is that at the Police Station they make more than one copies of the Station Diaries, out of which one is retained at the P.S. and the other is sent to the office of SP or concerned D.S.P. :attempts could have been made to have called for copies from SP or D.S.P. S.H.O. of the Police Station who merely sent a word that entries in the Station Diary were missing could have been called in the Court for examination to explain how and why those diaries were missing. If one or two further chances had been given to 1.0. or S.H.O. and if they had been compelled to produce those entries, desired result would have been achieved. Even concerned SP or DSP could have been examined in the Court to explain missing or non‑availability of entries in the Station Diary. After all this was are important case in which incident had taken place in broad daylight and two persons were injured with shots from revolver. There was no justification for such great rush in jumping to the conclusion and not allowing reasonable time nor making appropriate efforts for obtaining the missing entries in the Station Diary. During the hearing of this appeal before us in the High Court, at the stage of the conclusion complainant Saleem Ikram who was sitting in the Court stood up and with permission of the Court stated that Station Diaries of P.S. Jauherabad relating to entries 50 and 63 are very much available and he made an application to the Superintendent of Police, Liaquatabad, Karachi West with such request for issue of copies, who has passed the necessary orders‑in pursuance whereof he has received certified copies of both the entries 50 no.

63. According to him original Station Diaries are also available at the Police Station and could be called in the Court. We do not want to make any comments on the contents of these two entries, one way or the other for the reason that we propose to remand this case to the trial Court and leave it open for the trial‑ Court to send for the original Station Diaries and take all other necessary steps permissible under the law. We have enclosed application of complainant, his application to the S.P. and. certified copies of entries Nos.50 and 63 produced by him in a separate cover for the benefit of the trial Court. There is one other aspect of this appeal which requires consideration. According to the prosecution case four empties were recovered from the spot and revolver of .32 bore was recovered from respondent Changezi alongwith licence, and a bandoleer containing five live bullets. It is mentioned in the impugned judgment in paragraph 13 that empties and revolver in sealed parcels were sent to Forensic Science Laboratory. Learned trial Judge took exception to the fact that prosecution did not produce report, of the Ballistic Expert but made a request to the Court to call the Ballistic Expert so that he should bring with him copy of the report. Request was granted but the witness was never served with summons by the police. Learned trial Judge went on to observe further in paragraph 13 of the impugned judgment that according to Article 129 (g) of Qanoon‑e‑Shahadat, 1984 Court can presume against the prosecution that report is not being produced for the reason that it is favourable to the accused a .. and unfavourable to the person who is withholding it. It is further stated in the impugned judgment that defence also made similar request ~~ and summons were issued, which were served on the Director of Forensic Science Laboratory but nobody turned up to produce that evidence, hence the Court was within its right to accept the secondary evidence on this point in the interest of justice and relied upon photocopy of the Ballistic report which was produced on the record According to this report indefinite opinion is given by Ballistic Expert on five misfired cartridges due to lack of sufficient identifiable data. At this stage, it would be pertinent for us to make a reference to section 510, Cr.P.C. which envisages that a report of Chemical Examiner or any Serologist, Finger Print Expert or Firearm Expert submitted in the Court may be used in evidence without calling him as a witness. There is very important proviso which is to the effect "provided that the Court may, if it considers necessary in the interest of justice, summon and examine the person by whom such report has been made". Now first of all original report of Ballistic Expert is pot produced. Photocopy cannot be considered in the absence of original' report. There is no doubt that original report of Expert can be used in evidence without calling him as a witness. Court has power to call'' the witness in the Court if it is considered necessary in the interest of justice. This can be done at the request of prosecution or at the` request of defence or even the Court can do it on its own motion. Presiding Officer of the Court is expected to conduct the proceedings in such a way so that ultimately justice is done in the case and truth is found out. The Presiding Officer was to perform active role in the Court and see that all steps which are to be talon under the lave are so taken in accordance with procedure said down in those provisions. He has to exercise control over the proceedings and is expected to be in command. He is not expected to demonstrate helplessness. It is not proper to say that Summons were not served when they were issued once only. It is not enough and proper to say that summons were issued on Director of Forensic Science Laboratory but nobody turned up. Presiding Officer is expected to' know that process of the Court enjoys maximum respect and he who does not obey the process his presence can be procured by way of coercive process of bailable warrants and non‑bailable warrants. In support of what is stated above, reference can be made to unreported judgment of Supreme Court of Pakistan in Criminal Appeals Nos. K‑3 and K‑4 of 1982 in the cases of State v. Habibur Rehman and others and Bakhtiar Khan v. Habibur Rehman and others and the relevant portion from the said judgment is reproduced as under:‑ "And above all the learned Presiding Judge should have supervised and checked it. Neither under the Criminal Procedure Code nor the Evidence Act, he is to sit as a mere spectator. He is, even under the adversary system of law, required to actively participate in the proceedings with full consciousness of what goes on record. Dependence on others can result into what happened in this case." In the circumstances and for the facts and reasons stated above, we allow the appeal and set aside impugned judgment of acquittal. We remand the case to the trial Court for further examination of investigating officer on the point of entries 50 and 63 in the Station Diary of P.S. Jauherabad after calling for the original station diaries. It is open to the trial Court to even call the S.H.O. of P.S. Jauherabad to bring necessary record. Reasons can be enquired as to why original Station Diaries had become untraceable at the time when the evidence was recorded in the trial Court. It is only on this limited point of entries mentioned above, trial Court is allowed to record further statement of 1.0. Trial Court can summon Ballistic Expert alongwith original record so that correct factual position As ascertained. Trial Court is also allowed to take all other steps as contemplated under the law after recording of evidence as mentioned above and then after hearing fresh arguments of the Advocates of both parties write fresh judgment strictly according to law and merits. Since the incident took place way back in 1978, trial Court is directed to complete the remaining proceedings of the trial within two months. Respondent is allowed to remain on bail in the sum of Rs.30,000 with) one surety and PR in the like amount to the satisfaction of the trial Court for the remaining period of trial. M.Y.H./S‑179/K Case remanded.