1975 P Cr (PLP)

.-Summons after service of warrants for coercing presence of witnesses not received back-Closing of prosecution case without exhausting coercive measures, held, not proper-Penal Code (XLV of 1860), S. 304-A. The State v. Noor Muhammad 1972 P Cr. L J 1001 rel. (d) Criminal trial- -- Witness-Prosecution witnesses examined in absence of bus causing accident, without objection of defence counsel-Procedure adopted by Magistrate, held, improper-Case having been found fit for fresh trial on other grounds accused-petitioners allowed to recall prosecution witnesses if their case prejudiced for non-production of bus. Ch. Habib Ullah for Petitioner. Latif Ahmad Ch. for A.G. for the State. Date of hearing: 21st March 1974. - Syed Amanat petitioner was convicted under section 304-A, P. P. C. with a sentence of rigorous imprisonment for six months and a fine Rs. 1,000 or further rigorous imprisonment for three months. His appeal having been dismissed by the learned Sessions Judge, Sheikhupura, he has; approached this Court with a petition under section 439 (Cr. P. C. questioning the correctness of this order mainly on the ground of absence of medical evidence about the cause of death of Mst. Ghulam Bibi (deceased) as also the injuries suffered by Miraj Din and Munawar Hussain P. Ws.

2. A notice was consequently issued to the State and in view of the extremely inappropriate sentence the petitioner was also called upon to show cause why it should not be enhanced in case his petition fails. I have today perused the record with the assistance of the counsel of the parties and find that the contention raised on his behalf was not misconceived and called for interference.

3. The petitioner had over-run Mst. Ghulam Bibi (deceased) under his bus and then struck down her brother Miraj Din P. W. as also another pedestrian named Munawar Hussain, causing serious injuries to them resulting in a charge under section 279/337/304-A, P. P. C. The learned Magistrate had however convicted him only for the main offence i.e. under section 304, P. P. C., but without recording the evidence of Dr. Muhammad Idress, who had examined the injuries of all three of them. His medico legal certificates were on the file and his name was entered in the calendar of witnesses. He was no doubt summoned twice or thrice, but there was no order on record if he was ever served and was evading his attendance or could not be made available for- evidence without unnecessary expense delay in which case secondary evidence could be led to prove these medico legal-certificates. Anyhow before a person can be convicted under section 304-A, P. P. C. it is incumbent upon the prosecution to prove the cause of the death of the victim of the rash and negligent driving as held in' Abdul Latif v. State (1972 P Cr. L J 1095). There was no doubt that in the present case no regular post-mortem was performed on the dead body of Mst. Ghulam Bibi, but Sub-Inspector Fazelat Ali (P. W. 4) bad obtained the opinion of the doctor about the cause of her death on his inquest report as she had died while under his treatment in the hospital. This report also formed part of the record, it was, however, unfortunate that neither this Sub-Inspector had proved it in his statement nor was the attendance of the doctor procured for recording his evidence about it. The testimony of Moharrir, Head constable Haq Nawaz was likewise essential to arrive at the correct decision of the case as he had drawn out the first information report and initiated 8 the investigation in the course of which he had taken into possession the ill-fated bus as well as the damaged cycles of Meraj Din and Munawar Hussain P. Ws. and obtained the opinion of the doctor about the fitness of the three injured persons to make a statement. He had also prepared the site plan in order to fix the responsibility of the petitioner for this accident. This material omission had certainly prejudiced the petitioner in his defence as held in A. K. M. Raza and others v. The State (P L D 1958 Dacca 111).

4. The memorandum of the daily orders did not reveal the return of any summon after service or the issuance of any warrants to coerce the presence of these essential witnesses as prescribed under sections 90 to 93 of the Criminal Procedure Code. Learned Magistrate could not have closed the prosecution case without exhausting the coercive measures to obtain their attendance in Court as observed by me In re: The State v. Moor Muhammad (1972 P Cr. L J 1001).

5. As a result I have no option, but to accept this petition and remand this case for fresh decision after recording the evidence of Dr. Muhammad Idrees, as also the Moharrir Head Constable Haq Nawaz.

6. After I had recorded the short order about it on 21st March 1974 and had issued the same I glanced through the daily order sheet and detected another irregularity in the proceedings of this case. It had disclosed that the evidence of three witnesses, namely, Niaz Ali, the informant (P. W. 1), Muhammad Asghar (P. W. 2) and Murad Ali (P. W. 3), all eye-witnesses of this occurrence, was recorded on 11th January 1972 in the absence of the bus and the learned Magistrate had cancelled its superdari for his failure to produce it in Court on the relevant date. He had even returned the witnesses, who appeared in Court on 24th February, 1972 without recording their evidence due to the non-production of the bus on that date, but latter on their evidence was taken down without insisting on the presence of the bus. No objection was, however, taken before me about this irregularity. If the petitioner can show at the retrial that he D had been prejudiced in his defence due to the non-production of the bus at the time the evidence of these material witnesses was recorded, the learned Magistrate entrusted with the case may recall all the witnesses for their re-examination in the presence of the bus outside the Court and redecide the case thereafter. Case remanded