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Criminal Appeal No. 12 of 1983, heard on 14th April, 1985.

‑‑‑S. 302‑‑Evidence Act (I of 1872), S. 45‑‑Criminal Procedure Code (I of 1898), S. 510‑‑Ballistic Expert report‑‑Infirmity‑‑Fate of case hinging on evidentiary value of corroboratory evidence‑‑Prosecution failing to produce Fire‑arm Expert to support his opinion and trial Court not caring to call Expert as a witness to obtain reasons for his opinion or to provide opportunity to accused to cross‑examine him‑ Report of Ballistic Expert highly defective inasmuch as it was not written on prescribed form, not showing as to when crime empty and crime weapon were received in his office, nor containing reasons for opinion‑‑Conviction and sentence set aside and case sent back to trial Court for examination of Fire‑arm Expert as a witness and proceeding according to law.

‑‑‑S.302‑‑Evidence Act (1 of 1872), S. 45‑‑Criminal Procedure Code (V of 1898), S.510‑‑Expert opinion‑‑Report of an Expert, may he be a Ballistic Expert, held, after all an opinion which can be fallible and not immune from judicial scrutiny.

‑‑‑S.302‑‑Evidence Act (I of 1872), S. 45‑‑Expert opinion is received in evidence because it either confirms or falsifies other, evidence on record.

‑‑‑S.302‑‑Evidence Act (I of 1872), S. 45‑‑Criminal Procedure Code (V of 1898), S.510‑‑Expert opinion‑‑Weight to be attached to, depends to considerable extent on reasons given by him for conclusion arrived at.

Kh. Sultan Ahmad for Appellant.

Arshad Khan for the State.

Date of hearing: 14th April, 1985.

This Criminal Appeal No. 12 of 1983 by Nawab alias Nawabi appellant and connected Criminal Revision No. 124 of 1983 by Khurshid Khan petitioner, for the enhancement of sentence, arise from the judgment of learned Additional Sessions Judge, Gujranwala, whereby he on 24‑11‑1982 convicted Nawab alias Nawabi appellant under section 302, P.P.C for causing the death of Abdul Rashid and sentenced him to imprisonment for life and a fine of Rs.20,000, in default thereof to further R.I. for 3 years with the direction that the fine when recovered, be paid to the heirs of the deceased. I propose to dispose of them through single judgment.

2. The allegations against the appellant were that he on 4‑2‑1976 alongwith 4 acquitted accused namely Siraj Din, Munshi, Ramzan and Shahab Din, variously armed launched murderous assault on Abdul Rashid. Nawab appellant was armed with a Carbine. He fired a Carbine shot hitting Abdul Rashid on back of the chest resulting in his death. The occurrence was seen by Khurshid Khan P.W.4 and Shafiq Khan P.W.5.

3. The appellant was arrested on 31‑5‑1976. On 10‑6‑1976, he led to the recovery of Carbine Exh.P.4 from his Kotha. The police had already removed crime empty Exh.P.3 from the spot. The report of Forensic Science Laboratory shows that the crime empty Exh.P.3 was fired from Carbine Exh.P.4 recovered from the appellant. During trial, the appellant escaped from the custody of the police. He was declared proclaimed offender. The co‑accused were tried by learned Additional Sessions Judge, Gujranwala who acquitted them on 14‑1‑1981. The appeal against their acquittal was dismissed in limine by the High Court on 11‑5‑1982.

4. The appellant was again arrested on 4‑1‑1981. He was tried by Mr. Muhammad Azim Khan Niazi, Additional Sessions Judge, Gujranwala. Prosecution produced 18 witnesses in all. Khurshid Khan P.W.4 and Shafiq Khan P.W.5 gave the ocular account of the occurrence. They claimed to have seen the appellant firing Carbine shot on Abdul Rashid hitting on the back of chest, resulting in his death. Muhammad Rafiq P.W.11 and Ghulam Muhammad S.I. , P.W.13 deposed about the recovery or Carbine Exh.P.4 at the instance of the appellant. Mehmood Ahmad, Dispenser, P.W.16 identified the writing and signatures of Dr. Ghias ud‑Din on medico legal report and post‑mortem report of Abdul Rashid Khan deceased. The post‑mortem report indicated that there was one fire‑arm injury on the back of chest which was sufficient to cause death in the ordinary course of nature. The rest of the evidence is almost of formal nature.

5. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. He raised the plea of false implication on account of enmity.

6. The trial Court has found the ocular evidence to be interested and partisan. It has sought corroboration from the absconsion, medical evidence and recovery of Carbine Exh.P.4 from the appellant which matched with the crime empty recovered from the spot.

7. Kh. Sultan Ahmad, the learned counsel for the appellant, mainly contended that the report of the Ballistic Expert having not been supported by reasons does not carry any weight and as such could not have been used to corroborate the interested eye‑witnesses. Learned counsel for the State and the learned counsel for the petitioner/ complainant in the connected revision have supported the judgment of the trial Court. They maintained that the report of the Expert being admissible under section 510, Cr.P.C. no exception can be taken to it.

8. Since after hearing the learned counsel for the parties I feel inclined to set aside the conviction and sentence of the appellant on the ground of infirmity in receiving the Bllistic Expert report without summoning him as a witness or providing opportunity to the accused to cross‑examine him, I need not enter into the merits of the case. I find that the report of Ballistic Expert in the case in hand is highly defective, inasmuch as;

(i) it is not on the prescribed form;

(ii) it does not show as to when the crime empty and the crime weapon were received in the Office;

(iii) it does not contain reasons for the opinion.

Although the report submitted by Fire‑arm Expert appointed by Government can be received in evidence without calling the Expert as a witness and it can also be used as evidence in any trial, yet, so far as the rules governing the credibility or the value of the opinion of an Expert is concerned, section 510, Cr.P.C. does not make any departure from the existing state of law. It is well‑settled that report of an Expert, may, he be a Ballistic Expert, is after all an opinion which can be fallible and is not immune from judicial scrutiny. The opinion of an Expert is received in evidence because it either confirms or falsifies the other evidence on record. Since the fate of this case hinges on the evidentiary value of the corroboratory evidence, therefore, there was a greater necessity for obtaining the reasons of the Ballistic Expert in support of his opinion because the weight to be attached to the Ballistic Expert report depends to considerable extent on the reasons given by, him for the conclusion arrived at. The prosecution has not produced Fire‑arm Expert to support his opinion. The trial Court did not care to call the Expert as a witness to obtain reasons for his opinion or top provide opportunity to the accused to cross‑examine him. The learned trial Court should have summoned the Expert as a witness under proviso to section 510, Cr. P. C. as it was very much necessary in the interest of justice to examine him for the purpose of obtaining reasons for his) opinion.

9. For what has been stated above, there is no option but to set aside the conviction of the appellant and send back the case to the learned Sessions Judge, Gujranwala for examination of Fire‑arm Exert as a witness and proceedings according to law.

M.Y.H.

Case remanded.

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