P L D 1970 Lahore 845 (PLP)

6. A charge was framed against the petitioner on 26th of June 1963, and he expressed his desire on the 27th of June 1963, to cross‑examine all the P. Ws. Abdur Rashid (P. W. 1) and Safdar Husain Head Constable (P. W. 4) appeared on 12th of November 1963, and were further cross‑examined by the peti tioner. The Prosecuting Sub‑Inspector made a statement on that day that Rahim Bakhsh was reported to be dead and Dr. Ihsan ullah and Shamas Din were out of the country, the former being in U. K. and the latter being in Iran. It was further submitted by the Prosecutor that their evidence may be considered under section 33 of the Evidence Act. We find from the order dated 12th of November 1963, recorded on the order‑sheet of Urdu Record that the three witnesses were not available and were given up. There is no statement of the petitioner giving up these witnesses.

7. The petitioner denied the incident and produced four defence witnesses Muhammad Sadiq (D. W. 1) and Shaukat Ali (D. W. 2) gave evidence to the effect that the petitioner at the time of the occurrence was participating in a Milad Sharif in a mosque, and that they came to know next day that he had been involved in a case of murderous assault. Muhammad Sadiq (D. W. 1) deposed to the good character of the petitioner and further stated that the petitioner used to make complaints to the higher authorities against the police officials and bad characters. Capt. Dr. Ghulam Mohy‑ud‑Din (D. W. 3) deposed as to the good character of the petitioner. Haji Mian Muhammad Zarif (D. W. 4) stated that he was getting his truck and car repaired outside Sarai Sultan when he saw a blackish coloured man firing in the air. This evidence was rejected by the Courts below.

8. The learned Magistrate in corsidering the effect of the inability of the petitioner to cross‑examine Rahim Bakhsh, Dr. Ihsanullah and Shamas Din, referred to the provisions of section 33 of the Evidence Act and observed that the accused had been given full opportunity to cross‑examine all the three witnesses during the first part of the proceedings and their statements made in the Court before the charge were therefore, quite relevant for the purposes of proving the guilt of the accused. The objection against the admissibility of the evidence of these witnesses was rejected. The legal objection to the admissibility of the evidence of these three witnesses who could not be produced for further cross‑examination was not raised in the grounds of appeal and it is why we do not find any discussion with regard to this question in the judgment of the learned Additional Sessions Judge.

9. During the hearing of this petition, Mr. Ziaullah the learned counsel for the petitioner submitted that Ghulam Rasul who had borrowed money from the petitioner had not been produced at the trial and the motive part of the prosecution story, therefore, remained unproved. He also submitted that Jafar Shah near whose shop Rahim Bakhsh was injured, has also not been produced and this raised a presumption against the prosecution. The argument against the admissibility of the evidence of the three above witnesses was to the effect that the Court had not itself enquired into the factum of the death of Rahim Bakhsh and the non‑availability of the other two witnesses. It was submitted that a mere statement by the Prosecutor was not sufficient compliance with the rule laid down by the Courts for ensuring that a witness was really incapable of appearing for any of the reasons mentioned in section 33 of the Evidence Act.

10. The learned counsel appearing for the State submitted that section 33 of the Evidence Act was not applicable to the facts of the case but he did not, in any way, elaborate his argument. When I went through the case‑law myself, I found that I required more assistance on the legal aspect of the case and, therefore, I fixed up this case, for re‑hearing on which Mr. Aslam Riaz Husain, Additional Advocate‑General appeared for the State.

11. At the re‑hearing, the learned counsel for the petitioner reiterated his stand that the evidence of the three witnesses who could not be produced for further cross‑examination was in admissible. He slightly changed the ground of his attack. His submission was that section 33 of the Evidence Act could not be invoked because of the first proviso to the above section which says that the statement of a witness who was absent because of one of the reasons given in this section could only be admitted if the adversary had a right and opportunity of cross‑examination. The learned counsel submitted that the cross examination conducted during the examination of these witnesses under section 252 of the Criminal Procedure Code was not done as of right but on account of general practice prevalent in the Criminal Courts. In support of this submission the learned counsel relied on Lachmi Narain v. Emperor (A I R 1931 All. 621).

12. The learned Additional Advocate‑General appeared to agree that section 33 of the Evidence Act could be invoked for the use of the evidence of the three witnesses who could not be further cross‑examined but his view was that since the Court had not satisfied itself as to the correctness of the reasons advanced for the absence of these witnesses, their evidence should have been excluded from consideration. He in this connection, among other judgments referred to Aminul Hoque v. The Crown (P L D 1952 F C 63) and Ali Haider v. The State (P L D 1958 S C (Pak.) 392).

13. I have given my anxious thought to the matter and I find that section 33 of the evidence Act is not applicable to the facts of the present case. Section 33 of the Evidence Act is an exception to the rule of direct evidence and provides for sub stitutory and secondary evidence. The term "secondary evidence" clearly indicates an original source of evidence. It is a species of evidence which can be produced under certain conditions, in the absence of such an original source. The provisions of section 33 of the Evidence Act will not apply to a case in which a witness has given direct evidence in the Court but for some unavoidable reasons could not be subjected to further cross examination. The question of the admissibility of evidence is to be determined from the point of time it is brought on record, and in my view when a witness has appeared in a warrant case, his subsequent death or disappearance will not relegate the primary evidence led at the trial to the status of the inferior and secondary evidence. The fact that a witness could not be subjected to further cross‑examination does not relate to the admissibility of his evidence but is a question primarily connected with the weight attached to such evidence.

14. There is no doubt that there are some judgments which support the contention that section 33 of the Evidence Act could be invoked during the hearing of a warrant case for admission of statements made before the charge. In Lockley v. Emperor (A I R 1920 Mad. 201) the appellant had been convicted under section 420, I. P. C. by a Magistrate. One of the prosecution witnesses Mr. Wilson appeared before the charge and the counsel for the appellant made a statement that he would not re‑cross‑examine Mr. Nikon even in case a charge was framed. The accused after the charge applied for re‑summoning of Mr. Wilson who had left for England. It was held that the evidence of Mr. Wilson was relevant under section 33 of the Evidence Act and the fact that he could not be further cross‑examine would not make it inadmissible. It appears from the observations made in this judgment that the learned Judges who decided this case were of the opinion that the proceedings in a warrant case after the charge constitute a later stage of the same proceedings within the meaning of section 33 of the Evidence Act. In Nga Ba On and another v. King‑Emperor (A I R 1927 Rang. 248) the conviction was for cheating and abetment of cheating. One of the prosecution witnesses, Major Lord, who was an Executive Engineer, was cross‑examined before the charge. The accused asked that Major Lord be again summoned for further cross‑examintion. It transpired on the date of hearing that Major Lord had left for England. The learned Single observed that the evidence was admissible under the provisions of section 33 of the Evidence Act and could be used "at a later stage of the trial." In Diwan Singh and others v. Emperor (144 I C 331) which was a complaint case under sections 292, 500 and 501 read with sections 109 and 511 of the Indian Penal Code, one Mr. Scott a Government Examiner of questioned documents had been examined before the charge at the request of the accused. He was subjected to lengthy cross examination but before his cross‑examination could be completed he left Delhi for other Government work. The Magistrate discharged the accused but the Sessions Judge set aside the order of discharge. On a revision having been filed in the High Court at Lahore, it was contended by the learned Government Advocate that the incomplete statement of Mr. Scott could not be made use of the Magistrate for ordering the discharge of the accused. It was held by Tek Chand, J. that the evidence of Mr. Scott was admissible but the weight to be attached to it would depend upon the circumstances of the case. Reference was made to an American case cited at page 330 of Sarkar's Law of Evidence, 5th Edition, wherein it was said that if a statement was sub stantially complete and the witness was prevented by sickness, death or other cause from finishing his testimony, whether viva voce or by deposition, it ought not to be rejected but submitted to the Jury. The learned Judge while quoting the above passage himself referred within brackets to section 33 of the Indian Evidence Act which perhaps meant that he appeared to be of the view that section 33 of the Evidence Act was applicable to the case although he did not give any clear opinion to that effect. In my humble view, it does not appear that the basic difference between the direct evidence and the rule of admissibility of secondary evidence contained in section 33 of the Evidence Act was present to the mind of the learned Judges who decided the above cases. Section 33 of the Evidence Act, in any case, could not be invoked in the case of Diwan Singh because the case was still at the inquiry stage and the evidence of Mr. Scott had been considered by the Magistrate before any charge had been framed. It was purely a question of the weight of evidence which of a primary and direct nature and could be made use of irrespective of the fact whether the witness was or was not available for the completion of his cross‑examination.

14. The provision regarding the use of the previous state ment in the later stage of the same case necessarily postulates the recording of fresh evidence at that later stage and formal admis sion of the secondary evidence where the witness in not available for giving direct evidence.

15. Chapter XXI of the Criminal Procedure Code is headed "of the trial of warrant‑cases by Magistrates". A perusal of the various sections in this Chapter would clearly show that the hearing of a warrant‑case is a continuous process where the evidence considered as a whole. Of course, there is a stage where under section 253 of the Criminal Procedure Code, the Court will consider whether a prima facie case has or has not been made out and if discharge is ordered under the above section the proceed ings shall terminate. Again, under section 256 of the Criminal Procedure Code "the evidence of any remaining witnesses for the prosecution has to be recorded." The language of the section. clearly shows that the evidence recorded before the charge is a, part of the record of the case and has to be considered as al whole after the evidence of remaining witnesses has been recorded. The fact that provision for discharge has been made in) Chapter XXI of the Criminal Procedure Code, does not indicate that the stage after the charge is a later stage of the same case in the sense in which section 33 of the Evidence Act contemplates it. A trial after the commitment or a re‑trial or de novo proceed ings or resumption of proceedings against an absconding accused who has been dealt with under section 512, Cr. P. C., can safely be said to be later stage in the same case within the meanings of section 33 of the Evidence Act. The previous statement of a witness whose presence cannot be secured because of any of the reasons mentioned in this section will become relevant in such subsequent proceedings. The proceedings in a warrant case are, however, continuous and although technically the trial may start after the framing of the charge, the same evidence is to be con sidered in the whole case, for ordering conviction or acquittal. It was held in Queen‑Empress v. Chotu (I L R 9 All. 52) that when a charge has been framed and the plea of the accused recorded, the inquiry is turned into a trial and the evidence in support of the charge, already recorded, becomes evidence in that trial, subject to the right of the accused under sections 256 and 257 of the Criminal Procedure Code.

16. The view that I have taken regarding the continuity of the proceedings in a warrant case gets support from the pro nouncements of various High Courts on the scope of proviso (a) to section 350 of the Criminal Procedure Code. It was held in Sahib Din and others v. Emperor (A I R 1922 Lah. 49) that the word "trial" in section 350 of the Criminal Procedure Code covered the whole of the proceedings in a warrant case. The same view was taken in Labhsing and others v. Emperor (A I R 1922 Sind 106), Dagdu Govindset Wani v. Punja Vedu Wani and others (A I R 1937 Bom. 55) and Ramchandra Narhar Abhyankar v. Emperor (A I R 1944 Born. 14). It was observed in the later case that in a warrant case a trial commences when the Magistrate starts the inquiry i. e. takes his seat in Court with the accused in the dock in front of him and not when the charge is framed. In Fakhr‑ud‑Din v. Emperor (A I R 1925 Lah. 435) the word "trial" as used in section 30 of the Evidence Act was interpretted in so far as warrant cases are concerned, in the same sense and the case of Sahib Din (ibid) was relied upon. Proviso (a) to section 350 is no longer on the Statute Book of West Pakistan on account of the Amending Act XVII of 1964 but the principle deducible from the above judg ments still holds good and indicates that the process of recording of evidence in a warrant case is continuous one and the proceedings after the charge are not the "later stage of the same case" as contemplated by section 33 of the Evidence Act.

17. To my mind, there is no difficulty about the admissibility of the evidence of a witness who could not be further cross examined. The question is of the weight to be attached to such an evidence. If the cross‑examination is complete then the mere argument that the accused could further meet the case against him by further cross‑examination will not ordinarily persuade the Court to throw out the entire evidence. It is a part of the record and has to be considered unless prejudice or possibility of prejudice is shown (See the case of Lockley A I R 1920 Mad. 201 referred to above). In Mst. Horil Kuer and another v. Rajab Ali and others (A I R 1936 Pat. 34) a witness was examined on commission but before his cross‑examination could be complete, he died. It was held that this evidence could not be ignored and that the weight to be attached to such evidence depended on the circums tances of the case. It was further observed that the Court should look at the evidence carefully to see whether there are indications that by a complete cross‑examination the testimony of the witness was likely to be seriously shaken or his good faith to be successfully impeached. In Mangal Sen v. Emperor (A I R 1929 Lah. 840) the appellant had been convicted under section 477‑A of the Indian Penal Code. One of the prosecution witnesses was not cross examined when he appeared for the prosecution at the initial stage. After the charge, he was found to be too ill to travel from Meerut to give evidence and when interrogatories were sent to him he was not in a fit condition to answer the questions put to him. The result was that he was never subjected to cross examination. The contention raised was that his evidence could not be considered because of the fact that the statement of the witness was incomplete. The learned Single Judge relied on the case of Maharaja of Kolhapur v. S. Sundaram Ayyar (A I R 1925 Mad. 497) and observed that the said evidence was admissible but the weight to be attached to it depended upon the circumstances of each case. I may observe that in the body of the judgment of Mangal Sen's case, referred to above, no reference has been made to section 33 of the Evidence Act. The editor of his own, however, in the head note has made a reference to section 33 of the Evidence Act which in my view was quite inapt and inappropriate. The same case was reported in 118 1 C 647 and I find that there is no reference to section 33 of the Evidence Act even in the head‑note of the report. In Srikishun Jhunjhunwalla v. Emperor (A I R 1946 Pat. 384) where conviction was made under rule 81 (4) of Defence of India Rules, one of the witnesses had died after examination‑in‑chief. It was held that his evidence was admissible but the degree of weight attached to it depended on the circumstances of the case. It was further held that section 33 of the Evidence Act did not apply to the facts of that case. I may also refer to Ahmad Ali v. Joti Parashad (A I R 1944 All. 188) in support of what I have stated above. This was a case of damages based on the allegation that the defendant had cut down a number of trees which belonged to the plaintiff and had been guilty of certain breaches of an agreement of lease between the plaintiff and the defendant. One of the plaintiff's witnesses, namely, Wazir Singh, died before he could be cross‑examined. It was urged on behalf of the appellant‑defendant that his evidence was not admissible. The Court ruled as follows:‑ "A reference has been made to section 33 of the Act, but the provisions in that section are, in my judgment, quite irrelevant to the question before us." It was further observed:‑- "The difference between rejecting evidence on the ground that it is legally inadmissible and ignoring it upon the ground that it should not be believed may often be of very little importance in practice but the distinction is important in principle because if the evidence is inadmissible the Court is not entitled to consider it at all whereas if it is admissible the Court must decide on the circumstances of each case whether any weight should be attached to it. All relevant authority and also the provisions of the Evidence Act would support the proposition that the evidence of a witness in these circumstances is admissible and the Judge who is dealing with it must decide for himself whether he believes the facts stated or does not believe them." In Maharaja of Kolhapur's case a witness (the adoptive mother of the Raja) was examined when she was very ill and the case was adjourned after a few sentences in cross examination were recorded. She died before the cross‑exami nation could be resumed. The Court held that the evidence could not be rejected as inadmissible but was of the opinion that such evidence under the circumstances of the case could have little value. Kumara Swami Sastri, J. observed as under:‑ "I think the correct rule is that the evidence is admissible but that the weight to be attached to such evidence should depend upon the circumstances of each case and that, though in some cases the Court may act upon it, if there is other evidence on record, its probative value may be very small and may even be disregarded."

18. The above discussion clearly brings out the distinction between the primary evidence finished or‑unfinished and the secondary evidence which can be said to be relevant under section 33 of the Evidence Act. The conclusion that I draw from the study of the law on the subject is this: Where a witness has given direct evidence in a warrant case, his subsequent failure to appear for further cross‑examination for any of the reasons given in section 33 of the Evidence Act will not convert the nature of his evidence from the primary into secondary one. Reference to section 33 of the Evidence Act will not at all be, relevant in such a case. As soon as a witness is examined under section 252 of the Criminal Procedure Code, his evidence becomes relevant and the subsequent happenings which may prevent his appearance at the trial for further cross‑examination will not affect the question of the admissibility of his evidence although in certain circumstances these happenings may have effect on its value. Such a statement will be admissible by its own force and not by application of any rule of secondary evidence.

19. In view of what I have said above, it is not necessary for me to deal in detail with the contentions of the learned counsel for the petitioner that cross‑examination conducted under section 252, Cr. P. C. is not done as of right but as a matter of general practice. The case of Lachmi Narain v. Emperor on which he relied was dissented from by the same High Court in Banwari Lal and another v. The State (A I R 1956 All. 385). According to section 137 of the Evidence Act, the examination of a witness means his examination‑in‑chief, his cross‑examination and his re‑examina tion. Again, section 138 of the Evidence Act confers a right of cross‑examination upon the adverse party and regulates the order in which a witness can be examined in‑chief, cross‑examined and re‑examined. The word "examination" used in section 252 of the Criminal Procedure Code has, therefore, to be read with reference to the meanings attached to the same word in section 137 of the Evidence Act. It was held in the case of Lockley, referred to above, that the accused has a right to cross examine a witness before the charge, Similar view was expressed in Gurudin and another v. Emperor (A I R 1935 Nag. 8), Muhammad Rahim v. Emperor (A I R 1935 Sind 13) and The State v. Gajraj (A I R 1955 Raj. 66) although the High Court of Calcutta took a different view in Emperor v. C. A. Mathews (A I R 19 29 Cal. 822) and Brahmachari Ajitananda v. Anath Bandhu Dutt and another (A I R 1954 Cal. 395).

20. The matter is concluded by the pronouncement of the Supreme Court of Pakistan in the case of The State v. Maulvi Muhammad Jamil and others (P L D 1965 S C 681) wherein it was held that in a warrant case when a witness in examined before the charge, the) accused has a right to cross‑examine him under section 138 of ther Evidence Act.

21. I, therefore, find that the legal contention raised by the learned counsel is devoid of force. The witnesses whose evidence is sought to be excluded were cross‑examined before the charge and on the basis of the discussion contained in the preceding paras. I do not think that I can reject their testimony merely one the ground that they could not be subjected to further cross examination. The learned counsel appearing for the petitioner was not in a position to state as to how any prejudice had been caused to his client in the absence of further cross‑examination of the three witnesses. The ocular testimony of Rahim Bakhsh and Shamas Din has been considered and no serious fault was pointed out by the learned counsel in their statements. Even if the testimony of Rahim Bakhsh and Shamas Din is excluded from considera tion, the evidence of Abdur Rashid is sufficient to sustain a conviction. He is not an interested witness in the sense in which we use this term in the legal parlance. There is no previous back ground of enmity and the cross‑examination of this witness has not, in any way, derogated from the strength of his statement made in examination‑chief. The failure of the prosecution to produce Ghulam Rasul who had actually borrowed the money, and Jafar Shah near whose shop Rahim Bakhsh was injured does not in any way affect the intrinsic value of the evidence which has been brought an record. I find that the petitioner was rightly convicted.

22. The learned counsel however submitted that the peti tioner has been subjected to a lengthy trial covering about three years and nine months and it also took the appellate Court about two years to dispose of his appeal. In view of these circum stances he submitted that some reduction in sentence should be' made. The petitioner recklessly used a firearm in public and I do not think that the sentence of three years awarded to him is excessive in the circumstances of the case. I, therefore, dismiss the revision petition in toto, and maintain the conviction as well as the sentence. S. Q.Petition dismissed.