P L D 1957 (W (PLP)

SHABIR AHMED, J.‑

In his letter No. 80/Court, dated the 25th of January 1957, sent through the District Magistrate, Gujranwala, to the Registrar of this Court, Sheikh Ijaz Ahmad, Magistrate 1st Class Gujranwala, stated inter alia, that in ten criminal cases pending in his Court, five of which were murder cases, Dr. Umar Hayat, who used to be the Medical Officer at Hafizabad Civil Dispensary, had examined some persons to determine the nature of injuries or the cause of death. Doctor Umar Hayat had been sent out to serve in Saudi Arabia on deputation where he was serving as Medical Officer, Pakistan Dispensary, Madina or Mecca. He had recorded the evidence of all witnesses except the doctor in four of the five murder cases and in all the other five cases when Sheikh Muhammad Akbar, Sessions Judge, Gujranwala, sent a message to him through the Additional Public Prosecutor and later on told him verbally that the murder cases in which the post‑mortem examination had been held by Dr. Umar Hayat were not to be committed for trial by the 1 Sessions judge unless the statement of the doctor had been recorded and that the provisions of section 32 of the Evidence Act should not be employed to do away with the personal attendance of the doctor who was alive and could be called by the Government from Saudi Arabia. In view of the message and the verbal talk of the Sessions judge, he requested the District Magistrate, Gujranwala, in writing that proper authorities be moved for procuring the attendance of Dr. Umar Hayat for a week it, order to give evidence in the ten cases pending before him. The District Magistrate took no steps in the matter and the Public Prosecutor informed him that the District Magistrate would not act on the lines suggested by him. He added that he was advised by the Public Prosecutor, Gujranwala, on a reference made to the latter that a commission could be sent to the Pakistan Diplomatic Representative in Saudi Arabia for examining the doctor according to Paragraph 4‑A of Chapter 8‑C of Volume IV of the Rules and Orders of the High Court, whereupon he obtained a list of questions which were to be asked from the doctor by the counsel for the prosecution in two of the murder cases. The accused in those, two cases stated that they did not want to ask the doctor any question, whereupon he sent two momoranda to the District and Sessions Judge, Gujranwala, for being forwarded to the Registrar of this Court so that the statement of the doctor be recorded on commission by the Pakistan Diplomatic Re presentative in Saudi Arabia. The Sessions judge, however, sent back the memoranda to him with the remark that‑as: no arrangements had been made for the presence or representa tion of the accused at the time when Dr. Umar Hayat is examined by the Pakistan Diplomatic Representative, the course adopted was not proper. He sought the advice of the Registrar because the view he took was being declared incorrect by Sheikh Muhammad Akbar, Sessions Judge Gujranwala. On the matter coming up before my brother Kayani on the administrative side on the 16th of March 1957, he recorded a note which reads as follows :‑‑ " Send a copy of the Magistrate's letter to the Sessions judge and ask him whether the statement of‑the witness in question cannot be proved as a relevant fact ' under section 32, clause (2); read with section 5, Evidence Act, as this is an entry made in discharge of professional duty, and the attendance cannot be procured without an amount' of delay or expense, etc. etc:" On this the Deputy Registrar of this Court sent his letter No. 2777/G dated the 16th March 1957, along with a copy of the letter of Mr. Ijaz Ahmad, Magistrate, to Sheik Muhammad Akbar inquiring whether section 5 and clause (2) of section 32 of the Evidence Act could not be availed of in order to dispense with the personal attendance of Dr. Umar Hayat. In reply to the above letter from the office of this Court, Sheikh Muhammad Akbar sent this letter No. 564‑G/III. A‑2, dated the 4th April 1957, a part of which is reproduced below:‑-- That the doctor who examined the injured persons and performed the post‑mortem examination of the deceased persons in all these cases is to state on oath what did he actually see regarding the dead and the wounded persons and thus the fact in issue in all these cases would be, the cause of death and the result of injuries of those persons which can only be got proved by the medical witness by his evidence in Court. In these cases the doctor did not make any statement, either before the police, before the committing Magistrate, or any other Court of law which can of course be considered a relevant fact in view of the provisions of section 32 (2) of the Evidence Act. But the doctor only drew up his medical reports in these which are not substantial evidence and cannot be considered as statement before anybody and do not come under the purview of this section. Moreover the proof of a medical certificate is neither a fact in issue nor a relevant fact, therefore, in these circumstance, in my opinion, section 32 read with section 5 of the Evidence Act will not help the prosecution, in getting the accused persons convicted in these ten cases without actually calling the doctor in the witness‑box. I would further submit that the committing Magistrate is not himself competent to determine whether the examina tion of a certain witness is necessary or that the attendance of the so and so witnesses cannot be procured without a good amount of delay, etc. The Magistrate ought not have made this reference himself directly to the High Court and this action of the Magistrate is simply to get rid of these ten cases by examining the doctor on commission in Saudi Arabia where he is now serving as a Medical Officer. If the statement of the doctor is recorded on commission m Saudi Arabia, a question would naturally arise that it was not written in the presence of the accused and legally such statements cannot be used against them. Under these very circumstances I required the Deputy Commissioner and committing Magistrate to make efforts to send for the doctor for his examination in the committing Court. I further informed the Deputy Commissioner that I will refuse to commit myself in these cases to admit in evidence any statement recorded in Saudi Arabia in the absence of the accused. There are numerous means of communication available to the Government to bring the doctor for a short period to get his evidence recorded in these cases. In these circumstances arrangement by the executive Government may, therefore, be ordered for the presence of the doctor in the Court below for giving evidence." On the matter coming up for consideration again, the learned Chief justice directed that the matter be dealt with on the judicial side, and it is in these circumstances that it has come up for determination. In view of the fact that in his letter No. 564‑G/III. A. 2, dated the 4th April 1957, Sheikh Muhammad Akbar has not denied sending a message to Mr. Ijaz Ahmad, Magistrate 1st Class, Gujranwala, and having verbally spoken to the Magistrate that Dr. Umar Hayat be summoned from Saudi Arabia to appear as a witness at Gujranwala, it is clear that the assertion of the Magistrate to that effect in his letter No. 80/Court. dated the 25th January 1957, cannot but be accepted. I am astonished at the course adopted by the learned Sessions Judge, who ought to have known that when a judicial matter is pending before a Magistrate, the Magistrate cannot, in spite of the fact that the Sessions judge may be competent to hear appeals in certain case against the orders of the Magistrate, be dictated to by the A Sessions Judge with regard to the procedure to be followed unless the Sessions judge is exercising a power conferred on him by law. Under section 435 of the Code of Criminal Procedure a Sessions judge can call for the records of any case pending before a Magistrate subordinate to him, and if he finds that the Magistrate has passed an order or sentence which is improper or illegal, or has conducted the proceedings in an improper or an illegal manner, he can report the case to the High Court for action being taken for correcting the mistakes of the Magistrate except where the order is one of discharge of an accused person or of dismissal of a complaint, in which cases the Sessions judge may himself order a further inquiry. Section 435 of the Code of Criminal Procedure was not attracted because at the time the Sessions judge sent his message to the Magistrate and later verbally talked to him the Magistrate had passed no order. Moreover, the matter was not of the kind in which the Sessions judge could have himself passed the order, and even if he were of the view that the Magistrate had erred, the case had to be reported to this Court for orders. Had the learned Sessions judge passed an order in writing on the lines of his message to the Magistrate, the order would have been illegal and the position made worse by the fact that the order was not in writing. If the Magistrate had ignored the message and the verbal order of the learned Sessions judge, he would have been entirely within his rights because the interference of the learned Sessions judge by these means was not permitted by any law. In addition there was the fact that section 32 of the Evidence Act under which the Magistrate wanted to take action would not allow the Sessions judge to interfere. The relevant part of section 32 of the Evidence Act is in the following terms :‑ " Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases :‑ (1) ................ (2) When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty ; . . . . . . . . . . . . . . . . . . ." The opening part of the section makes it clear that if the Court hearing a case is of the view that the attendance of a witness cannot be procured without an amount of delay or expense, which, under the circumstances, appears to the Court to be unreasonable, the statements, entries or memoranda men tioned in the section become relevant evidence. It is the Court before which the question arises that has to determine the question of fact whether or not the delay and expense that will be entailed in procuring the attendance of a person is unreasonable in the circumstances of the case, and I am clear in my mind that at the stage when the learned Sessions judge resorted to the message to the Magistrate and to a verbal order to him, the interference of the learned Sessions judge p was improper because it was likely to interfere with the exercise by the Magistrate of his discretion in a judicial matter. If and when the cases came before him, the learned Sessions judge could have given his own finding on the question and he has himself to thank if his entirely unwarranted interference with the work of the Magistrate has had it believed in some quarters that he wanted the doctor to visit Gujranwala at the expense of the West Pakistan Government. I pass on to the consideration of the question whether the view expressed by the learned Sessions judge in his letter to the Deputy Registrar of this Court with regard to the inapplicability of section 32 of the Evidence Act to medico legal reports of Dr. Umar Hayat is correct. This view he sought to support by saying that the reports of the doctor cannot be considered to be statements and are not, therefore, covered by clause (2) of section 32 of the Evidence Act which has been reproduced in paragraph No. 2 of this order. The learned Sessions judge appears to have read only a part of that clause because if he had read the whole of it he could not have failed to notice that it is not only statements that have been declared relevant by that clause but also entries and memoranda in books kept in the ordinary course of business or in the discharge of a professional duty. It is hardly open to question that the results of the examinations of the injured or dead persons were entered by the doctor in books kept in the ordinary course of business and it is clear that the record of the result of the examination of the injuries would be relevant under clause (2) of section 32 of the Evidence Act. The opinion expressed by the doctor in the' reports with regard to the cause of death or the nature of weapons used and other similar matters would also be relevant because of section 45 of the Evidence Act as it cannot be doubted by anyone that the doctor is an expert for the purpose of that section. I might add that there is no justification for the opinion expressed by the learned Sessions judge that the word "statement" occurring in section 32 of the Evidence Act means a statement made before a police officer, a Magistrate or a Judge. I am certain that in a number of cases the learned Sessions judge has himself admitted in evidence dying declarations deposed to by persons who are neither police officers, Magistrates nor Judges, but if he has been refusing to admit those statements in evidence, he has been keeping out relevant evidence. The word "statement" occurring in section 32 of the Evidence Act has not the meaning which the learned Sessions Judge has ascribed to it in his letter to the Deputy Registrar, but only means anything said or written. I have no hesitation in declaring that even if any of the reports of the doctor is not covered by the latter part of clause (2) of section 32 of the Evidence Act, it would be covered by the first part of that clause because it will be a statement about a relevant fact and, therefore, admissible in evidence under section 32 of the Evidence Act. It is, however, obvious that the weight that should be attached to the reports of a doctor which are admitted in evidence under section 32 of the Evidence Act must depend on the facts of each case. If, for example, it were established that the doctor was on inimical terms with the party against whom the evidence is sought to be used or was, for some reason, biased in favour of the other party, the weight attachable to the entries made by the doctor would naturally not be the same as it would be if he were an entirely independent witness. But the question of the weight to be attached to a statement relevant under section 32, of the Evidence Act is in no manner different from the same question when it arises in a case where a person has appeared as a witness before the Court. Lest it should be necessary for this matter to come up again before this Court, I might point out that the entries made by the doctor can be proved by calling a person who is l acquainted with the handwriting of the doctor. If the writing is proved to be in the handwriting of the doctor, the Magistrate can, unless he finds anything to discredit the doctor, act on the entries in the doctor's medico‑legal reports. The reports of the doctor brought on the record as evidence in this fashion cannot be treated as the statement of the doctor for the purposes of section 509 of the Code of Criminal Procedure, because it was not a statement taken in presence of the accused persons and the witness who proved the reports before the committing Magistrate or any other person acquainted with the handwriting of the doctor will have to appear as a witness in the Court of Session unless the provisions of section 33 of the Evidence Act can be availed of with regard to the statement of the witness who appeared in the Court of the committing Magistrate. Having held that the view expressed by the learned Sessions judge with regard to section 32 of the Evidence Act in his letter to the Deputy Registrar of this Court is erroneous on all points, I proceed to consider what order will be appropriate. The records of the cases have come up before this Court and it cake in the exercise of its power under section 439 of the Code of Criminal Procedure read with clause (c) of subsection (1) of section 423 of that Code reverse any order that has been passed by the Magistrate before whom the cases are pending in spite of the fact that none of the parties has applied to it for such reversal. The orders of Sheikh Ijaz Ahmad, Magistrate 1st Class, Gujranwala, directing that the papers be sent to the Pakistan Diplomatic Representative in Saudi Arabia so that Dr. Umar Hayat be examined on commission are set aside because it is obvious that those orders were passed to satisfy the learned Sessions judge who had made it clear to the Magistrate that he will not accept as evidence the reports of the doctor and that in his opinion it was necessary that the doctor be summoned and examined as a witness. It will be open to Sheikh Ijaz Ahmad or the Magistrate now dealing with the cases to determine whether or not the reports of the doctor be admitted as evidence under section 32 of the Evidence Act, and if he comes to the conclusion that they should not be, he will decide whether the doctor should be called to Gujranwala to give evidence or merely examined by the Pakistan Diplomatic Representative in Saudi Arabia. It is, however, necessary that before coming to his conclusion that the reports of the doctor be admitted in evidence, the Magistrate should have some evidence before him that the doctor is actually in Saudi Arabia and should be of the opinion that calling the doctor as a witness would result in an amount of delay and expense which, under the circumstances of the case, appear to him to be unreasonable. The learned Sessions judge has tried to justify his unjustified and un-judicial interference with the judicial work of the Magistrate by saying that the Magistrate appeared to be desirous of getting rid of the cases without taking all evidence. I can find nothing to justify the suspicion that the Magistrate was avoiding to do what the law enjoined on him to do. The learned Sessions judge has further criticised the act of the Magistrate in writing direct to this Court. Technically perhaps the learned Sessions judge is right when he says that the Magistrate should not have written direct to this Court, but he has over‑looked that it is his own uncalled for interference with the work of the Magistrate that drove the latter to write to the Registrar of this Court through the District Magistrate. The disposal of the ten cases has been delayed by reason of what the learned Sessions judge has been doing with regard to them and the Magistrate now dealing with them is directed‑to dispose of the cases as expeditiously as‑he can. ORTCHESON, J.‑

I agree. A. H. Order accordingly.