P L D 1958 (W (PLP)

LARI, J.--‑ Chutto, Lal Bux, Hazur Bux and Yakoob have been convicted under section 302 P. P. C. by Mr. Ghulam Hyder K. S. Pir, Sessions Judge, Jacobabad. Chutto has been sentenced to death while others have been sentenced to trans portation for life: They have filed an appeal and the papers have also been submitted for confirmation of the death sentence imposed on appellant Chutto. It is not necessary to set out facts of the case in detail as we propose to set aside conviction and sentences of the appellants and order re‑trial. The conviction of the appellants is primarily based on the evidence of four alleged eye‑witnesses, namely Mst. Aziz Khatoon, Shakal, Ali Murad and Moula Bux, Mst. Aziz Khatoon and Shakal did not appear in the Court of the Sessions and their evidence were brought on record under section 33 of the Evidence Act. The learned counsel for the appellants contended that no case has been made out for admitting the previous deposition of these witnesses under section 33 of the Evidence Act and we have come to the conclusion that there is force in this contention. A summons dated 31st May 1957 was issued to Mst. Aziz Khatoon at her residence in Deh Jamalabad, Taluka Garhi Khairo. The process server endorsed a report on 10th June 1957 that search had been made from time to time for this woman but there was no trace of her. The process server Ghulam Nabi was examined. His statement was to the effect that he enquired from Muhammad Yakoob, Moula Bux, and Raza Muhammad but could not find out her whereabouts. Muhammad Yakoob and Moula Bux stated that Mst. Aziz Khatoon left the village after the quarrel and had not even attended the lower Court and her whereabouts were not known. The process server believed their statement and made the above quoted endorsement. The record itself shows that Mst. Aziz Khatoon did appear in the lower Court and her statement had been recorded. In the course of her deposition before the Committing Magistrate she gave her residence as Daith Khan Taluka Garhi Khairo. Similar summons had been issued in respect of the other witness Shakal. The persons whom the process server contacted made a similar statement in respect of this witness as well. Shakal had also appeared before the Court of the Committing Magistrate and gave his address as residence of Mir Jaffer Khan Taluka Gathi District U. S. F. It is clear from the addresses given by Mst. Aziz Khatoon and Shakal before the Committing Magistrate that they had left their original residences and were living at places indicated by them. Summons however were issued at their original address. The process server also appears to have gone to the village indicated in the summons. The witnesses whom he contacted also belonged to the village. No search appears to have made in the villages to which they had shifted after the incident. The persons who gave the information to the process server obviously were ignorant of the whereabouts of the witnesses as they stated that the witnesses had not appeared even in the Court of the Committing Magistrate although the facts were just the contrary. The learned Sessions judge acted rather hurriedly. He should have issued another summons and even warrants fob their search and production. In case Chainchal Singh v. Emperor (A I R 1946 P C 1), their Lordships of the Privy Council observed that the fact which is the basis of action under section 33 Evidence Act must be proved strictly especially in cases where witnesses had not been cross‑examined in the earlier proceedings. In this case too these two witnesses had not been cross‑examined in the Court of the Committing Magistrate and the learned Sessions judge went so far as to say that as these witnesses had been cross- examined their version stood unchallenged. To the same effect is the decision of the Federal Court in Aminul Hague v. Crown (P L D 1952 F C 63). The process server did not depose that he searched for the witnesses in the villages where they should ordinarily be expected to reside, namely, the villages where they lived at the time they gave evidence before the Commit ting Magistrate. The statements made by persons from whom the process server made inquires were obviously based on ignorance. In these circumstances we are bound to hold that it has not been duly established that attendance of Mst. Aziz Khatoon and Shakal could not be secured. The testimony of the remaining two witnesses by them selves would not be sufficient to warrant the conviction of the appellants. As proper steps had not been taken by the learned Sessions judge to secure the attendance of Mst. Aziz Khatoon and Shakal who are important witnesses in the case and as the appellants are charged with a very serious offence it is essential that while setting aside the conviction and sentences imposed on the appellants retrial be ordered. We accordingly accept the appeal, set aside the con viction of the appellants and order that they be tried afresh in accordance with law. We may mention that certain portion in the statement of Yakoob P. W. 4 is not admissible in evidence. He deposed as to what is alleged to have been stated to him by Shakal and Ghulam Muhammad. Shakal and Ghulam Muhammad did not depose as to what is said to D have been stated by them to Yakoob. In the absence of any statement on the part of Shakal or. Ghulam Muhammad Yakoob could not be questioned as to what had been stated to him by Shakal and Ghulam Muhammad and any statement to that will not be admissible in evidence. Mr. Ghulam Hyder K. S. Pit has already expressed his opinion on the merits of the case. It is directed that the case be heard by some other judge. K. M. A. Appeal accepted Retrial ordered