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Criminal Miscellaneous No. 1057 of 1972, decided on 28th February 1973.

‑‑ S. 35‑Admissibility of evidence‑Report submitted by police officer as result of inquiry entrusted to him prior to date of occur rence‑Not an opinion‑Report being related to occurrence, in circumstances, held, admissible in evidence.

Mirza Nasir Ahmad for Petitioner.

Kh. Muhammad Asghar I for A. G, for the State.

Wasim Sajjad and Bashir Ahmad Chohan for the Accused.

Date of hearing: 28th February 1973.

This revision has been filed b Noor Muhammad petitioner against the order of the Sessions Judge, Sheikhupura, disallowing certain documents to be exhibited as part of therecord in a murder trial pending before him, The petitioner is complainant in that case. The accused persons are being tried under section 302/148/149/307/325/109, P. P. C. by the Sessions Judge, Sheikhupura. The trial commenced from the 20th of November 1972, and until the 25th of November 1912, 15 P. Ws. had been examined. While the prosecution evidence was being recorded the learned Sessions Judge disallowed the following documents to be exhibited:‑

(i) Report of Muhammad Ishaq A. S. I. P. W. 3 made by him while working as A. S. I. at Police Station Nankana Sahib on an application Exh. P. W. 16/A, submitted to the local police by one of the accused persons (Annexure 'D').

(ii) Copy of Roznamcha Waqiati dated the 26th of September 1970, produced by Barkat Ali Patwari P. W. (Annexure B').

(iii) Special power of attorney executed by the petitioner in favour of one Maqsood Ahmad P. W. (Annexure 'F').

The aforementioned documents were referred to in the statements of Muhammad Ishaq, Barkat Ali P. Ws. as well as the petitioner. The relevant portions of these statements are Annexures 'A', 'B' and 'C' on the record. It is submitted that as was apparent from Annexures 'A', 'B' and 'C' learned Sessions Judge, declined to exhibit the aforementioned documents, namely, Annexures 'D', 'E' and 'F, without assigning any reason.

2. It is argued by learned counsel for the petitioner that the report made by Muhammad (shag P. W. (Annexure 'D') was relevant and could be proved by its maker under section 35 of the Evidence Act but the learned Sessions Judge had acted illegally and with material irregularity by not, allowing the prosecution to prove the said report so that it could be exhibited. It is then argued that Roznamcha Waqiati produced by Barkat Ali P. W. Patwari (Annexure 'E') was also relevant in order to determine the question as to who was in possession of the disputed land where the occurrence is stated to have taken place. It is then argued that the special power of attorney (Annexure 'F) could also be proved by the petitioner because he had executed it and it related to the management of the disputed land. According to learned counsel the aforementioned three documents were necessary to be exhibited on the record for a proper determination of the points at issue before the learned Sessions Judge.

3. I have heard learned counsel for the petitioner as well as for the accused persons. It is pointed out that the report of Muhammad Ishaq P. W. (Annexure 'D') was not exhibited by the Sessions Judge because it was only an opinion by a police officer and, therefore, inadmissible under the Evidence Act. In respect of Roznamcha Waqiati dated the 26th of September 1970 (Annexure 'E'), it is submitted that this document was prepared after the date of occurrence which took place on the 9th of September 1970. , The occurrence took place prior to this entry, consequently the fact occurring after the occurrence and having no previous connection with the same could not be considered relevant. It was for this reason, it is submitted, that this document was not exhibited although it was ordered to be placed on the record. It is then argued that the prosecution wanted to place on record only a copy of the special power of attorney executed by the petitioner in favour of Maqsood Ahmad P. W. which was inadmissible without the evidence of the loss of the original. Subsequently the original of the same was produced in the Court by the prosecution which Was placed on the record.

4. It is clear from the statement of Muhammad Ishaq P. W. that while ho was posted as A. S. I. at Police Station Nankana Sahib he was ordered by Riaz Ahmad S. I. to conduct an inquiry in respect of application Exh. P. W. 16/A dated the 18th of August, 1970, preferred by one of the accused persons. It is obvious that this inquiry was conducted by the said police officer in his official capacity and it was prior to the date of occurrence. He went to the spot in connection with the said inquiry, recorded the statements of the maker of the application as well as the others and submitted report after completing the inquiry. The prosecution has produced Muhammad Ishaq .as a P. W. and if his statement has been recorded his report (Annexure 'D') should have also been got proved and exhibited as it was relevant under section 35 of the Evidence Act. Learned Sessions Judge has not given any reason for declining to make this document an exhibit. He has simply written: "the contention is overruled and against law." Before me it is argued on his behalf that he disallowed the admission of this document because he regarded it as an opinion of a police officer and that an opinion of a police officer was inadmissible under the Evidence Act as only the opinion of an Expert could be admitted. A plain reading of the document would show that it is not an opinion, it is a report which was the result of an inquiry which was entrusted to him in his official capacity prior to the date of occurrence. Since it related to the occurrence it was relevant under section 35 of the Evidence Act and it should have been exhibited on the record. It is, therefore, ordered that the prosecution should be allowed to prove Annexure D' and it should be exhibited on the record.

5. The next document is Roznamcha Wagiati dated the 26th of September, 1970 (Annexure 'E'). This document was prepared after the date of occurrence. The occurrence is stated to have taken place on the 9th of September 1970. But the entry made in the Roznamcha Waqiati bore the date, 26th of September 1970. Consequently a fact which occurred after the incident and had no previous connection with the same was not relevant. I am, therefore, of the view that the learned Sessions Judge rightly declined to get the said document proved or exhibited on the record. Any way, he permitted the document m question to be placed on record.

6. Then comes the third document i.e. Annexure 'F' which is special power of attorney in favour of Maqsood Ahmad P. W. made by Noor Muhammad petitioner. 1t is stated on behalf of the learned Sessions Judge that the original power of attorney was produced by the prosecution in the Court. If it was so, then the same should have been exhibited on the record. I order accordingly.

7. The upshot is that the Sessions Judge is hereby directed to permit the prosecution to prove the report of Muhammad Ishaq P. W. (Annexure 'D') as well as the special power of attorney made by the petitioner in favour of Maqsood Ahmed P. W. (Annexure 'F) so that these documents could be exhibited on record.

This petition stands disposed of.

Order accordingly.

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