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Petitioner: Mst. KHUDIJA BEGUM VS Respondent: THE STATE AND OTHERS
Court Name: Baghdad-ul-Jadid Judge(s): Muhammad Afzal Zullah Title: Mst. KHUDIJA BEGUM vs THE STATE AND OTHERS Case No.: Criminal Revision No, 38 of 1969/BWP Date of Judgment:1969-07-01 Reported As: PLD 1971 Baghdad-ul-Jadid 19 Result: Petition allowed
JUDGMENT
JUDGMENT This is a revision petition under section 439, Cr. P. C., against the order, dated 15th February 196 ), of Additional Dis rict Magistrate, Bahawalnagar, whereby he, after reconstructing the record of depositions of ten prosecution witnesses lost during commitment proceedings, proceeded to use that record as evidence before him. The petitioner has also invoked the power of this Court under section 561-A, Cr. P. C. 2. The material circumstances leading up to this petition are that Mr. Akhtar Ali Jafri, Additional District Magistrate, .Bahawalnagar, was seized of a murder case at commitment stage, against several accused persons who are represented as respondents in this petition. Four P. Ws. i,e,, P. W. 3 to P. W. 6 were examined by him on 11th July 1968. Two P. Ws., i. e. P. W. 1 and P. W. 2 appear to have been examined by his predecessor. He examined threemore witnesses, i,e,, P. Ws. 7 to 9 on 13th August 1968. On 9th September 1968, P. Ws. 10 and 11 were examined. P. W. 11 is the doctor. Thereafter, on 26th September 1968, two more witnesses, i,e,, P. W. 12 and P. W. 13 were examined while P. W. 14 and P. W. 15 were examined on 7th October 1968. On 17th October 1938, no witness was present; therefore, the case was adjourned to 29th October 1968, when it was reported to the learned Magistrate that the record of evidence, of P. Ws. 1 to 10 (Urdu and English both) recorded by him as well as by his predecessor was missing. He made an effort to find out the record but there was no trace of it. He recommended the registration of a case under section 379, P. P. C. One witness Muhammad Bashir was present but he was returned unexamined because. the learned Magistrate wanted, first, to be sure about the record. The case was adjourned and the parties were asked to prepare the arguments on the course to be adopted, in case ultimately, the record could not be found at on 28th November 1968, the learned Magistrate ordered that it was not necessary
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to record the evidence of all the ten witnesses, of whose depositions had been lost, and that the same be reconstructed from the carbon copies available with the defence counsel. Thereafter, he started recording the statements of different persons for the purpose of reconstruction of the record. They are C. W. 1 to C. W. 6 and include the two Typists of the Court. One clerk of a learned counsel for the defence and another learned counsel for the defence himself. The defence produced typed written copies of the depositions of P. Ws. 1 to 10 and vehemently contended that the same should be used as evidence for the purpose of commitment proceedings. In fact, they produced two copies each of the depositions of P. Ws. 1, 2 and 8 because each one of them was examined twice, presumably' on the transfer of the learned Presiding Officers and single copy each of the depositions of the remaining seven P. Ws. it appears that the statements of P. Ws. 1 and 2 were recorded by the predecessors of the learned Magistrate while one of the statements of Karim Bakhsh (P. W 8) was recorded by his predecessor and the other was recorded by himself. It does not appear that the learned Magistrate himself ever recorded the statements of P. Ws. 1 and 2. He, in any case, was proceeding to act, under section 350, Cr. P. C. on the statements of these two P. Ws. recorded by his predecessors. All the carbon copies were supplied by the defence and they now constitute the so-called reconstructed record of the depositions of the said ten witnesses. The authenticity of the reconstructed record, as held by the learned Magistrate, can be well judged from the following observations made by him in the impugned order, dated 15th February 1969 :- "The Typists C. W's. were not in a position to remember that they had typed actually what was available on these copies. Nor any other witness could make that kind of statement. The record as reconstructed now, under the circumstances of the case, is the nearest possible approximation to the record, that had been lost and therefore, I close the reconstruction of the record proceeding, and order that the record reconstructed be read as the evidence of P. W. 1 to P. W. 10 as originally recorded and now as a sort of secondary evidence .. I have carefully seen the typed copies in the so-called reconstructed record They are neither corrected by the Presiding Ofnor were they signed, or initialled by him when originally made. They were not, in fact, initialled or signed by any person including the Reader or' the Typist. It is clarified that these copies are only typed copies and are not certified to be true copies whether according to rules or otherwise. The learned Magistrate, after the so-called reconstruction of the record, proceeded to use the same as evidence. This petition has been moved by the complainant side, challenging the order of the learned Magistrate reconstructing the depositions, as well as, The intended use as evidence thereof. 3. Mr. A. R. Tayyib, the learned counsel for the petitioner, has argued that the evidence of C. Ws. 1 to 6 is not sufficient and authentic to prove that the disputed copies are, in fact, true copies. On this assumption, he further argued that the said copies could not be used in either the commitment proceedings or at the trial, and that the only course open to the learned Magistrate was to record the statements of those witnesses afresh ; for which course, according to him, section 350(1), Cr. P. C. provided sufficient support. In the alternative, he prayed that if section 350 was not available to the learned Magistrate for such a course, the matter being before the High Court the same could be dealt with under section 561-A, Cr. P. C. Mr. Fakhar-ud-Din Pirzada, the learned counsel appearing for the State, strongly supported the arguments of Mr. A. R. Tayyib and went a step further in asserting that it is not possible, at all, under the law, to have recourse to the reconstruction of the lost record. Sardar Mahmud Khan, the learned counsel for the accused-respondents has, however, argued that the witnesses having appeared and made statements, there was no provision in the Criminal Procedure Code for their re-examination and that section 350, Cr. P. C. did not apply to the proceedings before the learned Magistrate. He relied on the High Court Rules and Orders, Volume
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IV, Chapter 19-A, clause 5 to contend that in case of loss of record, the reconstruction thereof was not only possible but was required under the rules. In the alternative, however, he suggested that the statement of one eye-witness could be recorded by the learned Magistrate afresh and that there being no rule as to quantum of evidence, the case could still be committed on the statement of that one eye-witness. After hearing the learned counsel at some length, I passed the following short order. I could not record my reasons then, because it was the last day of the Circuit at Bahawalpur and there were other part-heard matters to be dealt with. "For reascns to be recorded later, I accept this petition and direct -- (i)that the learned Magistrate shall examined afresh all those prosecution witnesses (P. W. 1 to P. W. 10) whose statements recorded earlier are alleged to have been stolen/destroyed; (ii)that during the examination-in-chief/cross-examination/ re-examination of any of these witnesses the parties will be allowed to use the reconstructed statement or any other statement alleged to have been made by him earlier in the enquiry, as the previous statement of the witness. This direction is subject, of course, to the law relating to use and proof of any alleged previous statement. In connection with proof of alleged previous statement, the parties may rely on the evidence already recorded in the reconstruction proceedings and also on any additional evidence which may be produced/received in this behalf according to law ; (iii)that the record of proceedings relating to the reconstruction of the statements allegedly of the P. Ws. together with the so reconstructed statements and the record of any statements alleged to have been made by the witnesses earlier during the enquiry shall be sent to the Court of Session for use at the trial, if the case is ultimately committed ; and (iv)that the learned Magistrate shall record the statements of these witnesses, if possible, from day to day and try to complete the same within shortest possible time. The learned counsel for the petitioner and the State have undertaken to produce all the witnesses on date/dates to be fixed by the learned Magistrate. 2. This entire record of the case so far received by the High Court in connection with this petition shall be returned to the learned committing Magistrate immediately. 3. This is an old case. The learned committing Magistrate shall complete the commitment proceedings without any avoidable delay. I now proceed to give my detailed reasons. 4. It has to be stated as an accepted proposition that during the commitment proceedings, the Magistrate records the statements of the witnesses as evidence. The law and all the rules relating to the recording, admissibility, value and other incidence of evidence are fully applicable to those proceedings. When the committing Magistrate passes an order as to commitment or otherwise, he acts on the "evidence" so recorded by him, therefore, whatever the record or its source may be, it will have to be straightaway held that the material, on which the Magistrate has to act, has to be "evidence" and nothing else. The next question that arises is whether the typed copies, which have been placed on the record as the reconstructed depositions of the witnesses, can be treated as evidence. Undoubtedly, they are not the primary evidence of the depositions made by those witnesses and admittedly, the primary evidence was not produced. Therefore, the learned Magistrate has proceeded to act on secondary evidence. In treating the disputed copies as secondary evidence, the learned Magistrate has made certain observations about his conclusions ; which do not permit a course which he ultimately adopted. Those observations, which have been quoted above, are further analysed as follows:-- (i)He did not treat the copies as secondary evidence according to law but treated it as "a sort of secondary evidence". Either a piece of evidence is primary evidence or secondary evidence. There is absolutely no scope for; either an intermediary supposition between these two types of evidence
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or a diluted secondary evidence in the form of, as the learned Magistrate put it, sort of secondary evidence. The law is very strict on the questions of the scope and use of evidence. It does not permit any such lax treatment of the material to be used as evidence. (ii)The learned Magistrate has clearly held that the Typists, who in fact are alleged to be the source producers of the typed copies, were not sure whether they had, in fact, typed the same material as was found on those copies. He further observed that no other witness could make such a claim. On this question, Sardar Mahmud Khan, the learned counsel for the respondents, has very frankly, and I appreciate that frankness, conceded that nobody could, at all, be certain about the fact whether or not the disputed copies were really true copies. I am also of the view that the C. Ws., who appeared before the learned Magistrate for .purpose of reconstruction of the record, were not, at all, in a position to say whether or not the copies were true copies. Therefore, according to the above estimate of the strength of the disputed copies, it cannot, at present be held that they can be acted upon by the learned Magistrate as evidence. (iii)The learned Magistrate has himself observed that the depositions as reconstructed, under the circumstances of the case, which he difinitely presumed to be peculiar, were only the nearest possible approximation of the original record. In this very pithy phrase, the learned Magistrate has assumed a doubt while using the word "nearest" and exposed that doubt to its full implications by using the phrases "possible approximation". If immediately after the reconstruction of the record the mental approach of the learned Magistrate to the so called reconstructed evidence is that it is only a possible approximation, how is it possible for him, at a later stage, while deciding the question of commitment or otherwise, to act on such material, treating it as evidence. (iv)In juxtaposition to the above circumstances, a glaring fact remains admitted and established that all those persons, who made the statements as P. Ws. 1 to 10, are alive and available to be examined as witnesses. They, undoubtedly, being one set of persons and directly concerned with the question in issue, were competent witnesses in the enquiry as to reconstruction of the record and none of them has been examined. This does not mean that no value at all can be attached to the statements made by other C. Ws. In this behalf; but the fact remains that a material part of evidence available, on the question of reconstruction, has not been recorded. (v)Another admitted fact is that the learned Magistrate himself recorded the statements of, at least, eight witnesses out of ten. He must have given the dictation and may be in a position to say whether or not the disputed copies were the true copies. However, he has not, at all, expressed his own opinion about that matter and has entirely relied on the evidence produced before him during the enquiry as to reconstruction. Similarly, the Reader of the Court who, it is presumed, must have taken down the depositions in Urdu, was another competent person to say as to whether or not the disputed copies were the correct copies of the original depositions; but he has not been examined. (vi)And above all, the disputed copies are not certified to be true copies nor have they been corrected and initialled by the learned Magistrate; and thus, in any case, they cannot be held to be, correct copies on the evidence before and finding by the learned Magistrate. The above analysis shows that, as the matter stands, at the present stage, the disputed copies cannot, at all, be treated as absolutely true copies of the original depositions made by the witnesses. And on the view that I have taken about the nature of the proceedings during commitment, the same cannot be used by the learned Magistrate as evidence, without there being some additional material with regard to the actual statements made by the witnesses. One source of such material can be the statements of those witnesses themselves. 5. The stress of the petitioner's learned counsel on state section 350(1), Cr. P. C. is, in my view, misplaced and it does not help him. The initial pre-condition for the application of section 350, Cr P. C. is that whenever a Magistrate, after having heard and recorded the evidence in an enquiry, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate, the
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latter Magistrate so succeeding may then either act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself, or he may resummons the witnesses and recommence the enquiry. At least, the statements of eight witnesses were recorded by Mr. Akhtar Ali Jafri, and he cannot be considered to be a successor of himself qua those statements. Therefore, he cannot act under section 350(1) Cr. P. C., in so far as the statements of those eight B witnesses are concerned. With regard to the statements of P. Ws. 1 and 2 recorded by his predecessor, he may have, under section 350(1), resummoned those witnesses and recorded their statements: but when he took over the charge from his predecessor, he did not act under that section, i. e. 350(1) and proceeded to accept the statements of those two witnesses, recorded by his predecessor, as evidence to be acted upon by him. It is highly doubtful whether at this stage, he can act under section 350(1), Cr. P. C., to resummon those witnesses and record their statements. It may amount to the review of the course adopted by him at the stage that the case came before him. Sardar Mahmud Khan, the learned counsel for the accused respondents cited Bashir v. Crown and Hakim Khan v. The State , to contend that section 350, Cr. P. C. is not applicable to the commitment proceedings. It may be pointed out that these cases related to the trial, before the Sessions Judge. It was held that section 350, Cr. P. C. was not applicable and that a successor Judge, at any stage of the trial could not act upon the evidence recorded by his predecessor Judge. No observation is found in those two cases to indicate that section 350, Cr. P. C. was not applicable to the proceedings during enquiry by a committing Magistrate. On the contrary, in the first mentioned case of Bashir, observations were made which are to the effect that the Judge who convicts, must do so on the evidence heard by him, and an exception from this rule is justified only when a particular case comes within an exception recognised by statute and that no such exception was applicable to that case because section 350, Cr. P. C. applied only to proceedings before Magistrates and a trial before a Court of Session was certainly not a proceeding before Magistrate. It was assumed that section 350, Cr. P. C. applies to the proceedings before Magistrates and those proceedings can be either that of enquiry or of trial. This supposition by me is further strengthened by the use of a definite expression in the heading of section 350, Cr. P. C., that is, "conviction of commitment on evidence partly recorded by one Magistrate and partly by another". The use of the specific word commitment" in section 350, Cr. P. C. leaves no doubt in respect of the proposition that it applies to the commitment proceedings also. In this very connection, the learned counsel for the accused-respondents argued that the commitment proceedings are provided in an exclusive part of the Criminal Procedure Code, i e , Chapter XVIII; and there being no parallel provision in that Chapter with regard to the subject- matter dealt in section 350(1), it should be presumed that the Legislature never intended that a committing Magistrate should act in the manner as provided in section 350, Cr. P. C. I do not agree with this reasoning by the learned counsel either. One reason, 1 have already stated, is that section '350 itself deals with enquire as well as trial and the word "commitment" is clearly mentioned in the heading thereof. The second reason is that section 350 falls within Chapter XXIV which deals with the "general provisions as to inquiries and trials". Unless there is a specific bar in Chapter XVIII, the provisions contained in section 350 will clearly be held to be applicable to the proceedings during the commitment; and. admittedly, there being no such specific bar in Chapter XVIII, 1 decline to accept the proposition put forth by the learned counsel that section 350 does not apply to the commitment proceedings. Before proceeding further, I may add here that the use of an expression in the heading part of the section for construing the true meaning of section 350, Cr. P. C. is only in the context of the provisions referred to and to be interpreted in this case and is not to be considered as a general binding rule of interpretation. It depends upon the circumstances of a given case whether or not the heading part of a provision is to be pressed into service for the1 2
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purpose of its interpretation. Therefore, I hold that section 350, Cr. P. C. does apply to commitment proceedings, but for reasons stated earlier, it does not apply to this case. 6. The learned counsel for the petitioner cited some cases in support of his contention that the learned Magistrate should record the statements of P. Ws. 1 to 10 afresh. In Bali v. The Stale , at the time of hearing of a criminal appeal filed by a convict in a rape case, it was found that the record of the trial was stolen some time earlier and the reconstruction thereof was not possible. In the circumstances, Changez, J., obsers ed that with a view to secure the ends of justice, in the circumstances of that case, it was necessary to exercise the inherent jurisdiction of the Court under section 561-A Cr. P. C., and ordered a retrial. In In re : Sevugaperumal and others after the filing of the appeal in the High Court in a criminal case, the records were destroyed by fire and no copies were available for the appellate Court. The only course open to the Court was an order as to retrial because it was felt that an appeal under section 423(1), Cr P. C., could not be decided without record. In In re: N. S. Subramania Ayyar ,, the accused r ersons were convicted of criminal breach of trust by the trial Magistrate but were acquitted in appeal. In revision, however, the appellate order was set aside and the appeal was ordered to be reheard. But the appeal could not be reheard because the Appellate Court itself was burnt and the record was destroyed. In that case, it was pertinent to note, certain copies of the prosecution evidence were available but Oat of the defence evidence were not available. The Appellate Court, in the circumstances, set aside the conviction and ordered a de novo trial. The complainant filed a revision petition in the High Court which was dismissed with the observation-- "It is stated that the summary of the evidence as given in the judgment as also in the notes which were prepared by the counsel for the complainant' could be looked into and 'the records reconstructed. But then such notes cannot be taken as containing everything that was stated by the witnesses. In a criminal case, it is certainly not safe to dispose of a case without having all the necessary material. In these circumstances the only course open to the Magistrate was to have ordered a de novo trial... In an eariler Full Bench case of Madras on the Civil side however, a different view was taken. The case is reported as Marakkarutti and others v. Veeran Kutty and others . When an appeal from the District Munsif was pending in the Court of the District Judge, the former Court was destroyed in the Moplah rebellion and the records of the case were irretrievable lost. The question arose, in many similar cases, as to what should be the course of action in respect of the records which were still needed in judicial proceedings at different stages. The District Judge finding himself in some difficulty sought the direction from the High Court by means of a reference. The Full Bench laid down as a basic principle that there is inherent power in every Court to reconstruct its own records and it follows therefrom that there is an inherent power in the Appellate Court to reconstruct the records of the Court from which an appeal lies to, it. I am in respectful agreement with this proposition of law and it applies with full force to-civil as well as criminal Court. 7. The above view finds support from the following authorities; an English case reported as Sanderson y. Wallker another English case Douglass v. Yallop an American case McLendon v. Jones a Division Bench case from Calcutta Babu Guru Dayat Singh v. Durbaree Lal Tawaree another Calcutta case Narsingh Narain v. Hurkhoo Singh yet another case from Calcutta Raj Gir Sahaya v. Ishwardhari Singh and a case from Madras Kamakshmma v. Emperor . Black, on judgments, expressed himself in favour of the power of the Court in supplying a new record where the original has been lost or destroyed. This power according to him, is indepenient of Legislation. In American system, in some matters, jurisdiction has been conceded to Courts by way of statutory provisions, as to the reconstruction of its lost record. This, it appears is only the recognition of a common law rule conceding power to a Court of general jurisdiction to restore or3 4 5 6 7 8 9 10 11 12 13
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supply its own records where they have been lost or destroyed, and this power may be exercised either after or before the judgment. In Domat's Civil Law, Chapter XII, section 17, page 88 it is observed as follows :- "Since laws are general rules they cannot regulate the time to come, so as to make express provision against all inconveniences, which are in finite in number, and so that their dispositions shall express all the cases that may possibly happen. It is the duty of the law-giver to foresee only the most natural and ordinary events, and to form his dispositions in such a manner that, without entering into the details of…
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