P L D 1960 (W (PLP)

Sh. Muhammad Shafi for Appellant. Ijaz Hussain Batalvi for Respondent. Date of hearing: 4th November, 1960. SHABIR AHMAD, J.‑Munsif Khan, who was sentenced to death under section 302 of the Pakistan Penal Code for the murder of Mst. Pathani by firing at her, has preferred an appeal to question his conviction, while Mr. Jamil Asghar, Sessions Judge, Jhelum, who passed the above sentence on the 22nd of January 1960, has referred the case to this Court for confirmation of the sentence of death. The appeal and the reference for confirmation will be disposed of by this order.

2. The occurrence out of which the case arises took place on the 31st of March 1959, at about sunrise, near village Karori wali Chhapri within the area of Dhok Kharli, and a report with regard to it was made to the police by Munsif Khan appellant. In this report he named some persons as the murderers of the unfortunate woman and said that he was the sole eye‑witness of the occurrence. After investigation the police came to the conclusion that Munsif Khan appellant was the murderer and sent him up for trial with the result already mentioned.

3. The prosecution produced no witness of the occurrence but relied on some circumstances which were stated to point to the appellant as the culprit. One of these circumstances was that an empty cartridge recovered from the scene of the murder was proved to have been fired from a weapon which was reco vered at the instance of the appellant. In order to establish that the empty cartridge was fired from a weapon recovered at the instance of the appellant, the prosecution relied on the deposition of Mr. Muhammad Ashraf Malik, Assistant Director, Forensic Science Laboratory, Lahore, who gave evidence as a firearm expert. This witness appeared in the Court of the committing Magistrate but was not produced by the prosecution before the learned trial Judge, and the statement made by the witness before the committing Magistrate was transferred to the file of the learned trial Judge as evidence by invoking section 33 of the Evidence Act. Mr. M. A. Arif, Public Prosecutor, Jhelum, who was in charge of the prosecution in the Court of Session, made a statement that Mr. Muhammad Ashraf Malik was ill and his presence could not be obtained without an amount of delay which under the circumstances of the case would be unreasonable, and he, therefore, prayed that the statement of the witness made before the committing Magistrate should be transferred to the file of the Sessions Court under section 33 of the Evidence Act. Upon this the learned trial Judge recorded an order that as the learned counsel for the accused had no objection to the transfer of the statement of the arms expert under section 33 of the Evidence Act to the file of the Sessions Court, that course be followed, whereupon the statement of the witness made before the committing Magistrate was used as evidence at the trial. The only material on which the learned Public Prose cutor made the statement with regard to the presence of the witness not being possible to obtain without an amount of delay which under the circumstances of the case would be unreasonable was the statement of P. W. 20, Raja Imtiaz Ahmad, Sub‑Inspector of Police, Dina, who partly investigated the case. This witness stated that a report had been received from Mr. Muhammad Ashraf Malik that he was unable to attend the Court on account of illness.

4. It was not denied by the learned counsel for the State that the circumstance that the empty cartridge which was recovered from the scene of the occurrence had been fired from a weapon recover ed at the instance of the appellant was one of the most important ' pieces of evidence against the appellant, and I agree with him. The question, therefore, arises whether the statement of the arms expert made before the committing Magistrate was properly transferred to the Court of Session as evidence under section 33 of the Evidence Act. It has been indicated already that the only material on which the learned Sessions Judge acted was the statement of Raja Imtiaz Ahmad, Sub‑Inspector of Police, P. W. 20, who said that a report bad been received that the arms expert, who had to appear as a witness, was ill. This would show that there was no report made to the Court in that behalf, but assuming that there was, it appears to me that the report by itself was not sufficient for depriving the accused of an opportunity to cross‑examine the arms expert in the Court of the learned trial Judge. Before invoking the provisions o section 33 of the Evidence Act, the learned Sessions Judge should have insisted on the production of cogent proof of the illness, of the witness but it is clear that of such cogent proof there was a complete absence in the present case.

5. The question now arises whether the defect was not cured by reason of the fact that the learned counsel who was defending the accused before the learned trial Judge agreed to the statement of the arms expert made before the committing Magistrate being used as evidence at the trial. I have given the matter my anxious thought and have arrived at the conclusion that the statement of his counsel could not bind the accused person. In criminal trials the counsel of the accused does not enjoy the same rights and privileges to make statements on behalf of his client as a counsel in a civil case does. This difference between the powers of counsel in civil and criminal cases is many times overlooked. Whether or not there was sufficient material fore dispensing with the presence of the arms expert at the trial was for the learned trial Judge to decide, and the mere fact that the counsel for the accused did not object to that course was immaterial. It may be that the learned trial Judge was compe tent to use the statement of the counsel of the accused to support his view that the witness was ill, but as that view was based on evidence which by itself was not sufficient to prove the relevant fact, the mere circumstance that the counsel of the accused agreed with the learned trial Judge in his views in the matter could not be used to the prejudice of the accused person. Con sequently, I hold that the fact that the counsel for the accused agreed to the adoption of the course adopted by the learned trial Judge with regard to the arms expert did not act as an estoppel against the accused person.

6. In view of what I have said above, it is clear that the statement of the arms expert was not properly brought on the record of the learned trial Judge. This brings me to the question what course should be followed. It appears to me that the most appropriate course is that this Court should exercise powers under section 428 of the Code of Criminal Procedure in order that the statement of the arms expert, who was treated at the trial as the 21st witness for the prosecution, should be brought on the record in a proper manner. Consequently I would send the case back to the learned Sessions Judge for recording the state ment of Mr. Muhammad Ashraf Malik, Assistant Director, Forensic Science Laboratory, Lahore. After that statement has been taken, the statement of the accused will be recorded, and if the accused wants to rebut the statement of the arms expert by producing witnesses he should be allowed to do so. The learned Sessions Judge should do this as expeditiously as he possibly can because the disposal of the appeal has already been delayed. As soon as the evidence that the learned Sessions Judge has been directed to record is received in this Court, a date for hearing of the appeal will be fixed by the office. It will not be necessary to print a supplementary paper book, and the learned Sessions Judge should send five typed copies of the evidence recorded by him. K. B. A. Order accordingly.