09/04/2024
ڈاکٹر کا عدالت میں بطور گواہ پیش ہوکر اپنی جاری کردہ۔پوسٹ مارٹم رپورٹ کے مندرجات بیان کرنا ضروری ہے۔
Legally, Postmortem report is viewed as a documented expert opinion, therefore, its production in the evidence through primary evidence though is admissible yet contents of it cannot be read unless doctor appears as a witness to authenticate and verify that it was the report he had prepared. If doctor is not available then such report available in the Court record can be produced as secondary evidence through any person who had seen preparation of such document, knows handwriting or signature of the doctor on the report while showing a comparison with any proved document in the handwriting of such doctor, and this can also be done by production of another doctor or record keeper of the concerned hospital. This being so in the context of Article 78 of Qanun-a-Shahadat Order, 1984 which requires that ex*****on of a document must be proved through the mode and manner as suggested in law.
Thus, despite proof of ex*****on of a document by above means, truth of contents of document is to be proved. Neither the medicolegal or postmortem reports are the categories of documents as mentioned in Article 102 so as to dispense with a formal proof of its ex*****on nor in this case it was claimed to have been admitted by the parties so as to rule out necessity of formal proof.
Article 102 so as to dispense with a formal proof of its ex*****on nor in this case it was claimed to have been admitted by the parties so as to rule out necessity of formal proof.
Thus, mere production of postmortem report is not sufficient to be read in the evidence as a support to the prosecution case.
Opinion of doctor could only be deposed by the said doctor as per Article 71 of Qanun-e-Shahadat Order, 1984 which says that oral evidence must, in all cases whatever be direct, that is to say, if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.
Corresponding to section 293 of Indian Code of Criminal Procedure, 1973, in ours section 510 exists but with slight difference, which is not applicable for medical reports. Mode of recording evidence of a doctor is mentioned in Section 509 of Cr.P.C. This Section falls in Chapter XLI which contains heading as “Special Rules of Evidence”, of course an overriding effect on all other provisions, consists of four Sections 509, 510, 511 and 512 of Cr.P.C. which with some connotation to cut short the process provides an expeditious mode of recording of evidence as well as securing the evidence for trial.
According to Section 509 of Cr.P.C., deposition of a medical witness taken and attested by a Magistrate in the presence of accused or taken on Commission may be given in evidence in an inquiry, trial or other proceedings under this Code without calling the medical witness, however, Court does have a power to summon the medical witness as and when thinks fit. This section has like connotation as that of Section 164 of Cr.P.C., which also ensures securing of evidence of a witness but unfortunately Section 509 Cr.P.C., has lost sight of legal practitioners and by the learned Courts, therefore, on the eve of death of a medical witness or his migration to other country, medical evidence falls short of probative value which cannot be brought on record properly or if it is brought on record its probative value decreases due to non-availability of medical witness to depose about the nature, locale, size of injuries and other observation made at the time of examination and test/protocols performed to arrive at an opinion with respect to cause of death or other matters which are also relevant as per Article 65 of Qanun-e-Shahadat Order, 1984. Thus, this Section is must to be adhered by all the concerned in future and Criminal Prosecution Service (CPS) should attend to the provision for securing statement of medical witness at the earliest opportunity while producing him before the concerned Magistrate so that on the eve of non-availability of doctor such statement could be used during the trial before the Court concerned. Necessity and utility of Section 509 Cr.P.C., has also been highlighted in Rule 6, Chapter-18, High Court Rules & Orders, Volume III.
Before producing secondary evidence of medical reports, it is essential to prove the non-availability of doctor.
Mere abscondence of accused is not a conclusive proof of the guilt of the accused. The value of abscondence depends upon the fact of each case and abscondence alone cannot take the place of guilt unless and until the case is otherwise proved on the basis of cogent and reliable evidence. The accused persons generally disappear due to fear of police or because of the feelings of the guilt, and in this case during cross examination accused/appellants put the apprehension of their fake police encounter because son of the deceased was a police man; therefore,
Jail Appeal 82543/22
Allah Ditta etc. Vs The State
Mr. Justice Muhammad Amjad Rafiq
2024 LHC 1366
This judgment was pronounced on 18.03.2024 and after dictation and preparation it was signed on 08.04.2024
