[Sections 32-33, Evidence Act
Qanun-e-Shahadat Order]
When it relates to the cause of death, Section 32(1) . See dying declaration.
"In the Ordinary course of business" in Section 32(2) is used to indicate the current routing of business which was usually followed by the person whose declaration it is sought to introduce. The rule does not extend to transaction of exceptional kind such as execution of a mortgage deed, but of business or professional employment in which the declarant was ordinarily or habitually engaged. The business referred to may be of temporary character. 13 C.W.N. 71 Sheonandan v. Jeonandan.
Whereabouts of witness not known. Transfer of evidence to Sessions falls under Section 33, Evidence Act held, improper on the statement of another witness that witness had gone to Karachi and his whereabouts were unknown. (Section 33, Evidence Act). (DB) PLD 1969 Pesh. 1 Farid Khan.
Transfer of statements u/S. 33, E.A. Statements of 2 P. Ws. who absconded after charge of murder against them cannot be transferred u/S. 33, E.A. Such statements kept out of consideration . PLJ 1980 Sc 413 Shaukat etc.
Unavailability of witness to be strictly proved. A verbal application by the Public Prosecutor is not sufficient ground for admitting previous deposition under section 33. AIR 1930 Lah. 1041 Indar v. Emp. The Court ought to take evidence and decide judicially that the witness could not be found. Mere statement of the Public Prosecutor is not enough. AIR 1944 Lah. 206 Kala v. Emp. (FC) PLD 1952 FC 63 Amin-ul-Haq v. Crown. (DB) PLD 1958 Dacca 257 State v. Abdul Rahim. (DB) PLD 1960 Lah. 1206 Munsif Khan. PLD 1957 Dacca 451 = (SC) PLD 1995 SC 398 Ali Haider. (FB) 26 Lah. 451 Chanchal Singh.
Public Prosecutor stating witness not available. (Section 33, Evidence Act). The Court must satisfy that the provisions of the section have been strictly complied with. No summons or warrants issued for the witness. Simple statement of the Public Prosecutor that the witness was not traceable is not enough. Such Statement excluded from consideration. 1971 P.Cr. LJ 1335 Hussain Bakhsh. 1973 P.Cr. LJ 428 Abdul Rashid.
"Witness could not be found" should be proved by direct evidence of person who went to execute summons, otherwise, held evidence was inadmissible. (SC) PLD 1958 SC (Pak.) 290 Allah Ditta.
Witness not traceable in spite of all possible steps and the witness is found to have been cross-examined, his evidence can be transferred to the trial court file under Section 33 of Evidence Act. (DB) 1971 P.Cr. LJ 602 Fazal.
Medico-legal report. Doctor making post-mortem report proceeding abroad. The report proved by other doctor held valid. (DB) 1969 P.Cr. LJ 518 Barkat. (DB) PLD 1969 Pesh. 335. State v. Bakhmir.
" Doctor making post-morterm report allegedly gone abroad. Report proved by his superior officer and brought on record as evidence. No attempt made to serve summons on doctor. Report, held improperly brought on record. (DB) PLD 1970 Lah. 735 Shera. (SC) 1970 P.Cr. LJ 858 = 1970 SCMR 405. Fazal Muhammad.
Medical witness gone abroad, report of process-server directed to be recorded under Section 428 about non-availability of the doctor, before post-mortem report could be brought on record. PLD 1972 Lah. 661. Muhammad Shafi.
"Medico-legal report proved by office head clerk. No attempt made by prosecution to examine Police Official entrusted with service of summons issued to the doctor to prove his absence from the country. Medico-legal report excluded from consideration. 1974 P.Cr. LJ 180. Muhammad Siddique.
Witness dying after statement before C.M. his evidence before Magistrate cannot be admitted before the Sessions Court (under Section 33 of Evidence Act) unless satisfied that the accused had the opportunity to cross-examine the witness. (DB) 47 Cr. 810 Abdul Rehman v. Emp. 226 Ind. Cas. 29 = AIR 1946 Lah. 275.
Waiver. There can not be waiver in a criminal case and incapability of a Witness to appear must be strictly proved. (PC) AIR 1946 P.C.1. Chainchal v. Emp. Want of objection or consent of accused does not make any difference. 10 Lah. 837 Ghulam v. Emp. AIR 1929 Lah. 542 = 6 Lah. 437 Sajjan (FC) PLD 1952 FC 63 Amin-ul-Haq v. Crown. (DB) PLD 1960 Lah. 1206 Munsif Khan. (SC) PLD 1958 SC 392. Ali Haider.
Witness not fully cross-examined though opportunity given to the defence, held no excuse for not using statement under Section 33 of Evidence Act. (DB) PLD 1970 Lah. 689 Riaz Ahmad. PLD 1970 Lah. 845 Muhammad Farooq.
Statement recorded without jurisdiction. Previous statement recorded by a Magistrate not having jurisdiction is not admissible under Section 33 of Evidence Act. (DB) PLD 1954 Dac. 129 Abdul Manan v. Chown.
Common witness in several cases. A person tried on 13 challans for offence of falsification of accounts under Section 477-A, P.P.C. certain witnesses common in all the cases. Statement recorded in one case only and carbon copies of depositions placed on record of other cases. held, procedure adopted illegal. Court should apply mind independently to facts and circumstances of each case and record separate judgments. (DB) PLD 1971 Pesh. 119 State v. Qalandar Khan.
Use of Criminal Court Judgment by Civil Judge to discredit testimony of a witness is wholly unwarranted and illegal. (SC) 1971 SCMR 321. Dil Muhammad etc. v. Iqbal Muhammad etc.
Use of Civil Court Judgment in Proceedings to establish truth of facts upon which it is rendered is not admissible. (SC) 1972 SCMR 584 Mst. Nazeer Begum v. Sain and others.
Use of evidence of fact before one court in another court. The finding of fact arrived at on the evidence before one court cannot be used as evidence of fact in another Court. (PC) AIR 1929 P.C. 29. Kumar Gopika v. Atal Singh.
Record of Identification parade. The Magistrate who carried out the identification parade must make his full statement in court. Transferring his recorded statement is not in accordance with law. (DB) ILR 1924 (5) Lah. 369. Lal. Singh v. Crown.