P L D 1954 Peshawar 9 (PLP)

MUHAMMAD SHAFI, J.‑Muhammad Zaman, aged about 35‑40 years, son of Kala, Muhammad Sadiq, aged about 40 years, son of Hassu, and Fazal Dad, aged about 30 years, son of Nawab, stood their trial in the Court of Treasury Officer Abbottabad, exercising powers of a Magistrate 1st Class (with powers under section 30 Cr. P. C ), under section 460 P. P. C., for committing jointly lurking house‑trespass by night on the 29th of August 1952, in the house of Khan Bahadur, and causing grievous hurt to Mir Alam and simple hurt to Muhammad Aslam and Ghulam Qadir, the inmates of the above house. All the three accused were convicted by the Magistrate's order dated 14th February 1953, and sentenced to three years' rigorous imprisonment each. An appeal against this order was dismissed by the learned Sessions Judge. The convicts have come up in revision to this Court. The learned counsel for the accused‑petitioners and for the State as well as myself are all agreed that the learned trial Court has been guilty of committing serious illegality in the trial of this case, which has resulted in miscarriage of justice, and on account of that reason the proceedings should be quashed, and retrial ordered. Muhammad Aslam (P. W. 1), Mir Alam (P. W. 2), and Ghulam Qadir P. W. were alleged to have received injuries on the night of occurrence at the hands of one or the other of the accused‑petitioners. In order to prove these injuries the prosecu tion had to examine Dr. Abdul Latif Khan, who at the time of the trial, was Assistant Surgeon Liaqat Memorial Hospital Kohat. The trial Magistrate addressed a Memorandum No. 1153 dated 10th November 1952, to the District Magistrate Kohat, forwarding interrogatories along with the injury sheets Exh. P. B., P. C., and P. D., for the examination of Dr. Abdul Latif Khan. It was not mentioned in this Memorandum as to what should the District Magistrate Kobat do with the interrogatories, or with the injury statements. So far as the interrogatories were con cerned, two questions were written therein, but it was not clear as to who wrote those questions, because they have not been initialed or signed by the person writing them. These two questions were as under:- "

1. Did you examine Muhammad Aslam. Ghulam Qadir and Mir Alam for their injuries ?

2. Are the remarks in English in the back of injury sheets Exh. P. B , P. C. and P. D. in your band and correct ? " If these questions were written by the prosecution counsel, which presumably was the case, then he could not have asked them in the leading form. The third question in the interroga tories was written as "XXX‑Nil." These words are also not signed or intialled by anybody, which is in itself something contrary to law. Somebody on behalf of the District Magistrate Kobat, forwarded the Memorandum referred to above and the interrogatories to the Treasury Officer Kohat, for doing the needful. On 21st November 1952, the Treasury Officer Kohat, ordered that the interrogatories and the injury statements should be put up to him on 29th November 1952, when the doctor was expected to come for evidence in another case. On that date the doctor appeared in the Court of the Treasury Officer Kohat. The learned Magistrate handed him over the interrogatories, who wrote the word "Yes" after each of the two questions, and initialled them. The doctor and not the Magistrate then signed at the foot of the interrogatories, and they were sent back to the trial Magistrate. To start with since the Treasury Officer Abbottabad, was not a District Magistrate, 'he himself could not order the examination of the doctor on commission. Under section 506 of the Criminal Procedure Code, if the trial Magistrate was of the opinion that a commission ought to be issued for the examination of a witness then he should have written it down that the evidence of that witness was necessary for the ends of justice, and that the attendance of such witness could not be procured without an amount of delay, expense and incon venience which, in the circumstances of the case, would be un reasonable, and applied to the District Magistrate of the District for the issue of the commission. It was then for the District Magistrate to accept this application or reject it, and if he accepted it, then it was he who was authorized in law to dispense with the attendance of such witness, and issue a commission to any District Magistrate or the Magistrate of the 1st Class within the local limits of whose jurisdiction such witness resided to take the evidence of such witness. The learned trial Magistrate by issuing the memorandum under reference himself to the District Magistrate Kohat, has violated the provisions of law, which cannot be justified on any account. Again, the Magistrate at Kohat, after receiving the Inter rogatories, had to examine the witness under section 505 Cr. P. C. on such interrogatories. Examination of the witness does not mean that the interrogatories should be handed over to the witness, and he be asked to write on them the answers. The examina tion of the witness has got to be according to law, and the mode thereof is given in Chapter XXV of the Code of Criminal Procedure. The record of evidence under the above Chapter has either got to be in the handwriting of the Magistrate himself, or in the handwriting of somebody else, but in his presence and hearing, and under his personal direction and superintendence. The record has then got to be signed by such Magistrate. In the present case, the statement of the doctor, if it can be called a statement at all, cannot be said to have been recorded according to law. Again, it will be noticed that the doctor has not been examined on solemn affirmation, which in itself is an illegality, and makes the record of the evidence inadmissible. Again, the doctor should state that he examined the injured persons and found particular injuries on them. He cannot merely say that the notes on the back of the injury statements are correct, without giving the details of those injuries in Court. This amounts to evidence by reference, which is not permissible in law. The result of the above discussion is that the doctor, has not been properly examined in this case, and consequently, the record, as it is, is incomplete. I am constrained, therefore, to accept this revision petition, set aside the conviction and sentence of the accused‑petitioners and send the case back to the trial Magistrate, to try the accused de novo according to law. The accused shall be released on bail, provided they furnish security to the satisfaction of the trial Court in Rs. 2,000 each, with two sureties of the like amount apiece, for their regular attendance. Orders announced. A. H. Re‑trial ordered