ڈاکٹر کا عدالت میں بطور گواہ پیش ہوکر اپنی جاری کردہ۔پوسٹ
مارٹم رپورٹ کے مندرجات بیان کرنا ضروری ہے۔
2024 YLR 1924
Jail Appeal 82543/22
Allah Ditta etc. Vs The State
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 execution of a document must
be proved through the mode and manner as suggested in law.
Thus, despite proof of execution 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 execution 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
execution 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.
2024 YLR 1924
Jail Appeal 82543/22
Allah Ditta etc. Vs The State
