P L D 1952 Lahore 418 (PLP)

SHABIR AHMAD, J.‑Ali, son of Allah Ditta. Jat, of Kot Ishaq in the district of Gujranwala, who was sent us to stand trial under section 302 Pakistan P. C., on the allegation that he had intentionally caused the death of his wife, Mst. Rasul Bibi, was sentenced by Mr. A. Lazarus, who was then Sessions judge at Gujranwala, by his order dated the 21st of August, 1951, to undergo seven years' rigorous imprisonment under section 325 Pakistan P. C., and against that decision has presented an appeal to this Court. At the trial some witnesses were produced by the prosecu tion to connect the appellant with the offence. Besides the above evidence, the prosecution brought on the record of the Court of Session the depositions made by Dr. Muhammad Abdullah and Dr. Sardar Ahmad, who had respectively performed post‑mortem examination on the dead body of Mst. Rasul Bibi and examined her injuries before her death. In the Court of Session the above mentioned doctors were examined as witnesses, but only on points which were not clear from the depositions made by them in the Court of the committing Magistrate. It was urged before the learned Sessions judge on the authority of Bharosey v. Emperor A I R 1947 Oudh 41, that as the two doctors had not been questioned in the Court of Session about the matters mentioned in their depositions in the Court of the committing Magistrate, those depositions became inadmissible in evidence. The learned Sessions judge accepted this contention and holding that there was no proof on the record that the injuries received by Mst. Rasul Bibi were sufficient in the ordinary course of nature to cause her death convicted the appellant under section 325 Pakistan P. C. When the case first came up for hearing before me no one appeared for the Crown, but as the point involved was of some importance, I issued notice to the Advocate‑General by my order dated the 29th of April 1952, so that I might have the benefit of the views of the Crown in this matter. In response to this notice, the learned Advocate‑General sent Mr. Iftikhar -ud‑Din Ahmad to represent the Crown. The main question to consider is whether the learned Sessions judge was right in holding that the depositions of the doctors made before the committing Magistrate had become inadmissible in evidence, because when appearing as witnesses in the Court of Session they were not questioned about the subject matter of those depositions. The contention of the learned counsel for the appellant was that the learned Sessions judge was right in his view and the learned counsel for the Crown did riot seriously controvent that contention. It appears tome, however, that the view taken by the learned trial judge was not correct. Section 509 of the Code of Criminal Procedure, which governs the matter, is in the following terms :‑ (1) The deposition of a Civil Surgeon or other medical witness, taken and attested by a Magistrate in the presence of the accused, or taken on commission under Chapter XL may be given in evidence in any enquiry, trial or other' proceeding under this Code, although the deponent is not called as a witness. (2) The Court may, if it thinks fit, summon and examine such deponent as to the subject‑matter of his deposition. The words "although the deponent is not called as a witness" which occur at the end of subsection (1) settle the question. If the intention of the Legislature were that a deposition of a medical witness taken in the Court of the committing Magis trate under Chapter XVIII of the Code of Criminal Procedure became inadmissible in evidence if the witness appeared in the Court of Session one would have expected the Legislature to make that clear by using the word "if" instead of "although" in the part of subsection (1) of section 509 Criminal P. C. reproduced above. The learned Judge who gave the decision in A I R 1947 Oudh 41, the case relied upon by the learned trial Judge, has if I may say so with all respect, entirely overlooked the language of section 509 of the Code of Criminal Procedure and has based his finding mainly on general principles which principles were, in my opinion, not applicable because of the specific provision contained in that section. I cannot, however, understand why as soon as he felt that the point raised about the admissibility of the depositions of the doctors before the Court of the committing Magistrate had substance in it, the learned Sessions judge did not summon the doctors to appear before him as witnesses under section 540 of the Code of Criminal Procedure and examine them on the relevant points. If that course had been followed a lot of public time and money could have been saved and the course itself could not have been open to any objection. I might add that, if the depositions of the doctors before the committing Magistrate are kept out of consideration, I fail to see on what material it can be held that the injuries received by Mst. Rasul Bibi were grievous in character and how the learned trial judge reached the conclusion that the offence fell under section 325 Pakistan Penal Code. It now remains to consider what order should be passed. It is obvious that because of the exclusion of relevant evidence, the order acquitting the appellant of an offence under section 302 Pakistan P. C., cannot be said to be proper. If there were an appeal by the Provincial Government against the acquittal of the appellant of the charge of murder, the whole case could have been disposed of by this Court, but as there is no such appeal, the case will have to go back to the trial Court. Acting, therefore, under clause (b) of subsection (1) of section 423 of the Code of Criminal Pro cedure, I order the appellant to be retried by Sessions Judge, Gujranwala. A. H. Case sent back.