Order XIII Rule-10 CPC gives power to court to send for either from its own record of any other suit
2022 PCrLJ 1753
نوجوان وکلاء جو کریمینل وکالت کرتے ہیں ---
قانون شہادت اور ضابطہ فوجداری کے مطابق کوئی بھی دستاویزات بشمول میڈیکل رپورٹ یا گواہ کا سابقہ ٹرائل کورٹ کا بیان ٹرائل کورٹ میں نہ طلب کیا جاسکتا نہ ایگزیبت کیا جاسکتا ہے نہ بطور ثبوت پیش کیا جاسکتا ہے تاہم ضابطہ دیوانی کے مقدمات کیا جاسکتا ہے لیکن ضابطہ فوجداری میں دستاویزات کو قانونی طریقے پیش کیا جا تا ہے اس کے بعد ڈاکومینٹ قانونی طریقے سے کرنا ہوتا ہے تاہم اگر ڈاکومینٹ کے مندرجات والا گواہ کسی معقول وجہ سے ٹرائل کورٹ میں پیش نہیں ہو سکتا ہو پھر قانون شہادت کے دفعہ 72کے تحت شہادالاشہادہ کے مطابق قانونی طریقے سے ثابت کیا جاسکتا ہے
Transposition of statements;
Shahada ala al-Shahada;
Physical activity after fatal firearm injury.
It requires that previous statements under Article 46 & 47 would first be proved and then its corroboration and contradiction would be taken up. In this case, first matter for consideration is how to prove such previous statement. Trial court has invented to transpose the copies of previous statements into this trial from its own record, Which practice is not warranted. To track the correct position, it is observed that practice adopted by trial court in this case is permissible only in civil cases or it has some room in criminal trial as well. Unlike code of Civil Procedure, 1908, there is no specific provision in Cr. P.C which deals with transposition of statements in subsequent trial; nor any provision exist relating to calling for record of any criminal court for the purpose of inspection and using it as evidence.
Order XIII Rule-10 CPC gives power to court to send for either from its own record of any other suit or proceedings. For criminal trial ‘any other proceedings’ obviously relates to a previous trial as mentioned in Article 47 QSO.
Yet this provision of CPC cannot be stretched for inspection of court record by a criminal court in a criminal trial. Though section 94 of Cr. P.C and Article 158 & 161 give power to the criminal court to call for any document yet it does not include court record; even then those section simply authorize to calling of document; as per provisions of Article 158 & 161, parties are not exempted from producing the primary evidence of such document or the secondary as the case may be.
In the circumstances, right course would be resort to certified copies of such statements for using as evidence because statements recorded in an earlier trial are termed as public documents as per Article-85 (3) of Qanun-e-Shahadat Order, 1984 with following expression; “(3) documents forming part of the records of judicial proceedings” Certified copies of such documents can be obtained under Article 87 and contents of such documents can be proved by production of such certified copies under Article-88 of said Order of 1984.
When certified copies of such statements are produced, these are treated as proved under the principle of evidence in the form of presumption .
This method is lost sight of our practitioners and the courts which is based on Islamic principle, introduced for the first time through said Order in 1984. This principle of evidence is an exception to hearsay evidence and can successfully be used to prove the case in a situation when witnesses could not appear as being dead or for any other reason stated in the proviso under discussion.
Witnesses or documents, not having notice by the defence, cannot be produced or tendered respectively in evidence by surprise, therefore, it is incumbent upon the prosecution that whenever, any such statement is intended to be produce or any witness for shahada ala al-shahadah is adduced, copy of such statements be handed over to the defence well before their production. It ensures the observance of Constitutional duty with respect to due process and fair trial.
Doctor observed duration between injury and death as 1 x 1½ hours while between death and postmortem as 16 to 20 hours. he admitted as soon as he received the papers, he started the examination. Though he had admitted to court question that as per book written by Parikh, death in like situation should have been instantaneous, yet did not explain further with respect to injury in the present case. Defence tried through cross examination that brain was not prolapsed from exit wound and it was not the serious injury, therefore, deceased remained alive for 1 to 1x1 ½ hours. Though medical evidence to the extent of present appellant is apparently corroborated yet it would be discussed in the ocular account section ahead in the light of position of deceased, the appellant and the site plan; however, it would be appropriate to throw light first on the proposition that if deceased could remained alive for such a longer period after receiving firearm injury into his head/skull.
C.K. Parikh in his Text book of Medical Jurisprudence, Forensic Medicine and Toxicology at page 4.51 (Q. 4.29.) commented upon ‘physical activity after fatal firearm injury’ in following words;
“This depends upon the site of injury and the organ involved. Unless there is gross destruction of brain, cardiovascular system, or pulmonary system, some physical activity is possible in many cases. However, it is shorter in firearm victim than in victims of stabbing. In a pistol shot through the right temple perforating the brain and exiting on the left temple, the victim was a position to sit and answer questions nine hours after the shooting, though he succumbed to the injuries then. A man who got a shot in his heart by a pistol could walk half a mile before he collapsed. A victim of 0.32 caliber bullet, which penetrated his heart, lung, and liver, fell to the ground, pulled out his gun, and shot the assailant in the chest. He died 20 minutes later. Death is instantaneous if there is a gaping wound of the heart or the medulla is involved”.
Doctor has not explained the nature of injury in this case properly, therefore, above condition of deceased can be presumed which is in line with duration between injury and death.
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