RASIAH, Appellant, and SUPPIAH (S. I. Police), Respondent

071-NLR-NLR-V-50-RASIAH-Appellant-and-SUPPIAH-S.-I.-Police-Respondent.pdf


Rasiah v. Suppiah (S. I. Police)
265
1949
Present: Ganekeratne, Dias and Basnayake JJ.
RASIAH, Appellant, and SUPPIAH (S. I. Police), RespondentS. C. 1,310—M. C. Batticaloa 5,954
Criminal Procedure—Trial in Magistrate's Court—Evidence of defence witness—Contradicted by previous statement to Police—Right to prove such state-ment—Evidence in rebuttal—Impeaching credit— Evidence Ordinance,Section 155.
Where, in a summary trial before a Magistrate,a witness gives evidencewhich differs materially from a previous statement made by him to thePolice, it is open to the prosecution to prove such statement. This isnot evidence in rebuttal but an exercise of the right given by section 155of the Evidence Ordinance to impeach the credit of the witness.
Welipenna Police v. Pinessa (1943) 45 N. L. R. 115 not followed.
Appeal from a judgment of the Magistrate, Batticaloa. This-appeal was referred to a Bench of three Judges by Windham J-.
N. Kumarasingham, with B. C. Ahlip and M. A. M. Hussein, foraccused appellant.—After the defence was closed, Police ConstableDe Hoedt was called to produce a previous statement made by defencewitness Kidnapillai, in order to discredit him. It is submitted that thatprocedure is irregular and illegal in that such evidence was evidence inrebuttal. Evidence in rebuttal after the defence is closed is not per-mitted in a summary trial before the Magistrate under our law.
The procedure for summary trials before a Magistrate is prescribedin Chapter 18 of the Criminal Procedure Code. Section 189 enacts thatthe Magistrate shall take, in the manner provided, all such evidenceas may be produced for the prosecution and defence respectively.
There is no provision for leading evidence in rebuttal, in the CriminalProcedure Code or anywhere else, in summary trials before a Magistrate.In the District Court evidence in rebuttal may be led under section 212of the Criminal Procedure Code, and section 237 (1) permits the leadingof evidence in rebuttal in the Supreme Court.
The omission of a similar provision in a summary trial before a Magis-trate is significant and is capable of one meaning only and that is that theLegislature omitted such similar provision deliberately and that theLegislature did not permit the leading of evidence in rebuttal in a summarytrial in the Magistrate’s Court.
This position has been accepted by this court in W.elipenna Police v.Pinessa 1 where Moseley J. states that there is no provision for callingof evidence in rebuttal in the Magistrate’s Court.. In Saibu v. Jayasena 2Keunenaan J. agrees with the decision in Welipenna Police v. Pinessa(supra). Dias J. also followed that decision in Roslin Nona v. Per era 3but queried the soundness of that decision in Wijeratne v. Ekanayake 4.
1 (1943) 45 E. L. R. 115.* (1944) 45 E. L. R. 91.12—i. 1
8 (1946) 47 N. L. R. 523.* (1947) 48 N. L. R. 306.
1J. N. A 87878-1,040 (3/49)
266
CANEKERATNE J.—Rasiah v. Suppiah (S. I. Police)
Under sections 190 and 429 of the Criminal Procedure Code, a Magis-trate has power to call evidence on his own motion and at any stage,but this court has taken the view, following English cases, that thatright should not be exercised by judges to fill in the gaps of the pro-secution case or to place the accused at an unfair advantagesee David
v. Idroos 1 ; Fernando v. Sargeant Samath 2 ; G. S. Theas, Police Vidane v.Thalimai 3 ; The King v. Dora Harris 4.
T.S. Fernando, Grown Counsel, with G. P. A. Silva, Crown Counsel,and A. E. Keuneman, Crown Counsel for the Attorney-General.—Theprocedure followed by the Magistrate is perfectly regular. Section 165of the Evidence Ordinance gives the Magistrate power to ask any questionsof any witness and to order the production of any document at any time-to obtain proper proof of relevant facts.
As to the cases cited for the appellant, only Welipenna Police v. Pinessa(supra) supports the appellant on this point. Almost all the othercases deal with the question whether it was proper for the Magistrateto call evidence to fill in the gaps of the prosecution case. The questionwhen rebutting evidence is permissible was considered by the Court ofCriminal Appeal in The King v. Aiyadurai 6.
The evidence that has been led in this case is clearly evidence relevantunder section 155 (c) of the Evidence Ordinance. As to how relevantevidence in such a case is to be led there is clearly an omission in CriminalProcedure Code. Therefore English law is applicable in such a case.
The evidence that has been led may be evidence in rebuttal, thoughnot substantive evidence, but even if it is evidence in rebuttal such evidencewas permissible under the principles enunciated in King v. Aiyadurai(supra) as, clearly, necessity for such evidence arose unexpectedly.
Under section 429 of the Criminal Procedure Code the duty is caston the judge to call the evidence necessary for a just decision of thecase. See Daniel v. Soysa6 and the Indian decisions reported in 37Crim. L. J. 522 ; 25 Crim. L. J. 217 ; 31 Crim. L. J. 198.
Cur. adv. vult.
March 11, 1949. Canekbeatne J.—
The appeal comes before us on a point reserved. The appellant wasconvicted of driving an omnibus on the-highway in a dangerous manner,contrary to section 82 (2) of Ordinance No. 45 of 1938. No argumentof any substance was advanced before the learned Judge in appeal,“ except for one, that the trial Judge had no power to allow the prose-cution to call evidence and prove that the chief defence witness, theconductor of the omnibus, had made to the Police, a statement differingin a material particular from his evidence in the witness-box ”. Themain contention of Mr. Kumar asingham was that a Magistratehad no power under the Criminal Procedure Code to allow rebutting
i (1944) 45 N. L. R. 300.4 L. R. (1927) 2 K. B. 587.
* (1944) 45 N. L. R. 548.* (1942) 43 N. L. R. 289.
(1938) 2 C. L. J. 297.8 (1908) 3 A. O. R. 50.
CANEKERATNE J.—Raaiak v. Suppiali (S. I. Police)
207
evidence to be called, and be referred to six decisions, Welipenna Police v.Pinessa 1, Saibu v. Jayasena 2, Rosalin Nona v. Perera (S. I. Police),3 Wije-ratne v. Ekanayahe 4, David v. Idroos 5, Fernando v. Sergeant Samath ®,only the first of which supports him. There in a very short judgment thelearned Judge states,—
“ There is no provision for the calling of evidence in rebuttal in theMagistrate’s Court. ”
Had there been as full and clear an argument before him as before ushe would probably have come to a different conclusion. To ascertainwhether testimony of this kind can be received one must resort to therules of evidence in Ceylon which are found in Chapter 11 of the CeylonLegislative Enactments, the Evidence Ordinance, the law containedtherein, with the exception of certain provisions, applies in criminalcases ; it is necessary next to see whether there is any provision expresslyor impliedly modifying the evidentiary rules in the Criminal ProcedureCode (Chapter 16 of the Ceylon Legislative Enactments). Section 135of the Evidence Ordinance lays down that the order in which witnessesare produced and examined shall be regulated by the law and practicefor the time being relating to Criminal Procedure, and in the absenceof any such law by the discretion of the court. The credit of a witnessmay be impeached by proof of former statements inconsistent with anypart of his evidence which is liable to be contradicted. (Section 155 (3).)If it is intended to bring the credit of a witness into question by proofof anything he may have said or declared touching the matter, one wouldgenerally ask the witness in cross-examination as to what he is supposedto have said or declared on a previous occasion as to any fact materialto the issue ; if the witness admits the words or declarations imputedto him, proof on the other side becomes unnecessary ; if he denies theutterance proof in contravention will be received at the proper season.The other side may prove that fact as it is at liberty to prove any factmaterial to the issue. It may be a statement, verbal or written, but whenthe statement is in writing the provisions of section 145 of Chapter 11apply.
Provision is made for a trial in a Magistrate’s Court in Chapter 18,in the higher courts in the two succeeding chapters. The absence of aprovision in Chapter 18 like that contained in section 212 or in section237 (1), it is argued, is fatal to a right of rebuttal. The significance ofthe absence of a power in one chapter as importing a change of substance,though material, may easily be exaggerated. The rule of exclusion isonly a subsidiary rule of construction, and it is not a rule of universalapplication. The principle remains as expressed by Lopes L.J. inColquhourti v. Brooks 7.,
“ The maxim is often a valuable servant, but a dangerous masterto follow in the construction of statutes or documents. The exclusionis often the result of inadvertence or accident, and the maxim oughtnot to be applied when its application, having regard to the subjectmatter to which it is to be applied, leads to inconsistency or injustice. ”
1 (1943) 45 N. L. R. 115.* (1947) 48 N. L. R. 306.
(1944) 45 JV. L. R. 91.
(1946) 47 N. L. R. 523.
6 (1944) 45 N. L. R. 300.6 (1944) 45 N. L. R. 548.
(1888) Q. B. D. 52, 65.
268
CANTEKLETtATNE J.—Rasiah v. Suppiah (S. I. Police)
The order of production and examination of witnesses is regulated inthe ease of trials.before the District Court and before the Supreme Court,by some of the sections in Chapters 19 and 20 respectively. A trial inone of these eourts is a formal trial and almost elaborate provisions arecontained in these chapters. There has been an inquiry into the chargein another court; the accused knows the evidence against him and hasbeen served with a copy of the indictment. The prosecution is conductedby the Attorney-General, generally through a Crcvm Counsel or otherlawyer. A trial in a Magistrate’s Court is regulated by Chapter 18,it is a non-formal trial. No express positive rule as regards the order ofproduction and examination of witnesses is found here. There is reallyone section relating to the procedure on trial (section 189), which howeveris not a comprehensive section on the procedure. It only provides forcertain matters. The other sections are 187, 188, 189 and 190. TheMagistrate besides having full control over the proceedings is entrustedwith certain powers ; often there may be no lawyer appearing for theprosecution. The rules to be observed in a summary trial cannot begathered from the provisions of the Criminal Procedure Code alone,one must read the provisions of the law of evidence into the Code toevolve the rules to be observed. By so reading one can find three phases.First the prosecution case-—the complainant can open his case : secondlythe case for the defence, the accused can open his case and if he adducesevidence and closes his case he can address the Magistrate. Subsequentto this, (a) evidence may be called by the Magistrate himself (sections190 and 419).(6) where it is necessary to impeach the credit of a person,
this may be called proof in rebuttal, if the word rebuttal is used in avery wide sense, but it is speaking strictly not rebutting evidence. Afterhis adversary has closed his proof, a party having the affirmative canonly be heard in adducing proofs contradictory of statements of the otherside or directly rebutting the proofs given by his adversary.
It is necessary first to see whether he can claim to have a right. Sec-tion 155 (3) permits the credit of a witness to be impeached by proof ofany statements inconsistent with any part of his evidence which is liableto be contradicted. Testimony “ liable to be contradicted ” has, it maybe said, to be read with reference to the position of the party at the timewhen he tenders the evidence. If so, testimony can be brought on therecord to impeach a prosecution witness almost always, but the prosecu-tion can hardly ever bring evidence to impeach a defence witness becauseat that time he has already closed his case. This seems an impracticalview. The evidence ought to be relevant and material to the issues inthe case. Cross-examination upon immaterial matters for the purposeof contradicting a witness is disallowed because a witness eannot bepresumed to come forward to defend himself on such collateral questionsand otherwise the issues in a cause would be multiplied indefinitely andthe real merits of the controversy would be lost sight of in the mass oftestimony to immaterial points. The prosecution can claim to have aright to impeach the credit of a defence witness, under this section. Howcan he assert this claim ? It is a question of practice and must be leftto the discretion of the court trying the case. If the court grants per-mission to call a witness for this purpose, the witness is a prosecution
269
CAJNEKEKATi'E J.—Rasiah v. Sappiah (S. I. Police)
witness, (c) Next come cases where the prosecution is not entitled asof right to call any evidence, all that the complainant can do is to makean application to the court to exercise its powers under section 419(such as one where proof in rebuttal, used in the proper sense, seemsnecessary, &c.). Further provisions about a case are these—witnessescalled by the prosecution, or by the defence can be cross-examined bythe adverse party, or be re-examined by the party calling. The witnessescalled by the court can also be cross-examined. There are thus threeclasses of witnesses. Next the conviction or acquittal must turn uponthe evidence given by the prosecution, the defence, and the evidencetaken by the court on its own motion, not on statements made to aMagistrate out of court (section 190). A headman was called by theMagistrate in Jonklaas v. Silva1, another witness, after the defencecounsel began his address, in Daniel v. Soysa. 2 Section 419 applies toall Courts. It is divisibleinto two parts, a permissive and an obligatory,the former enables a Court at any stage to, among other things, summonany person as a witness. Where, however, the evidence of any personappears to be essential to the just decision of the case, it must summonand examine the person. Under section 190 a Magistrate might, on read-ing the evidence or reading an authority submitted by one side, takethe view that evidence on a particular point should be produced, hewould then be acting on his own motion. One side or the other mayfile a list containing the name or names of new witnesses 3, as seems tohave been done in some of the cases in India, or make an applicationand suggest to the Magistrate that it is a proper case for the exercise ofhis discretion. The Indian cases 4 quoted by Mr. Fernando are caseswhere a Judge acted under the section corresponding to section 419 ofChapter 16. Two of them appear to be cases where rebutting evidencewas allowed, the other case too is probably of the same class. They arenot cases where evidence was called to impeach the credit of a witness.Two of the cases quoted by Counsel for the appellant are instances wherethe Court did not exercise its discretion under section 419.
There was no opportunity to lead the evidence objected to in thiscase before the prosecution case was closed. There seems to be noreason why the matter which arose while the case for the defence wasbeing conducted may not be answered by contrary evidence on the partof the prosecution when the prosecution has the right to impeach suchevidence. It is said that such evidence would prejudice the defence ;it may be inconvenient to a party to discover that his witness has madean inconsistent statement earlier, but what prejudice can there be insuch a case ? It is in the interests of justice that a guilty person shouldbe convicted just as it is in the interests of justice that an innocent personshould be acquitted. If the court thinks that in order to give a justfinding it is necessary to examine a witness, then it could not be an impro-per exercise of the powers of the Court where it has discretionary powersto summon that witness, merely because that evidence supports the caseof the prosecution, and not that of the accused. As counsel said thereis no other ground in support of the appeal, the appeal should be dismissed.
1 (1904) 7 N. L. It. 181-182.* 25 Cr. L. J. R. 217.
* (1908) 3 A. C. R. 60.31 Cr. L. J. R. 198.
3 Section 419 of Chapter 16.37 Cr. L. J. R. 522.
1*J. IS. A 87878 (3/49)
270
DIAS J.—Ragiah v. Swppiah (S. I. Rolics)
Dias J.—
I agree. In view of the practical importance of the question raised,
I desire to deal with two points :
In the first place, when the credit of the prisoner or of a defence witnessis impeached by the prosecution under section 155 (c) of the EvidenceOrdinance “ by proof of former statements inconsistent with any partof his evidence which is liable to be contradicted ”, and when the case forthe defence is closed, the prosecution moves formally to prove the previousstatement which the witness denied on oath—such evidence cannot,in my opinion, be called “ rebutting evidence
It is a matter of legal history that for a great many years defendingcounsel in criminal cases in this Island made free use of the Magisterialdepositions in order to “ discredit ” prosecution witnesses under section155 (c) of the Evidence Ordinance. Despite a few protests from indivi-dual Judges, counsel were freely allowed to confront the witness withouthaving to prove such statements, if the witness denied having madethem, and without losing the highly prized right of reply in consequence.The matter, however, was placed beyond all doubt by the decision of aBench of three Judges in R. v. Oraniel Appuhamy 1. Since that decisionit has been the invariable practice “ to prove ” the alleged inconsistentstatement by calling the person who recorded the alleged statement orto whom it was made. The contention now advanced is that, whilethis can be done in the Supreme Court or in a District Court, it cannotbe done in a Magistrate’s Court. The answer to this contention is thatsection 155 of the Evidence Ordinance, while it lays down a rule of*‘ adjective law ”, does not lay down a rule of ‘‘ criminal procedure ”. It is arule of evidence, and is found in the Evidence Ordinance. R. v. GranielAppuhamy {supra) was not laying down a principle of criminal procedurebut was explaining the scope of section 155 of the Evidence Ordinance.Therefore, when in any Court to which the Evidence Ordinance appliesa witness under cross-examination denies having made a previous state-ment which is inconsistent with his present testimony, the cross-examiner,if he desires to pursue the matter further, must formally “ prove ”that inconsistent statement. In the ease of a prosecution witness,the defence will prove the inconsistent statement as part of the defence.In the case of a defence witness, including an accused-witness, the prose-cution at the close of the case for the defence must be given the opportu-nity, if it desires to do so, of proving that statement. I fail to see howthis can be called “ evidence in rebuttal ”. The trouble appears to havearisen by the misuse of the expression in Welipenna Police v. Pinessa 2.
In the second place, section 189 of the Criminal Procedure Code doesnot lay down any general rules regarding the order in which witnessesare to be examined in a summary trial before a Magistrate. Section189 (1) provides that “ When the Magistrate proceeds to try the accused,he shall take in manner hereinafter provided all such evidence as may beproduced for the prosecution or defence respectively ”. The onlyrules “hereinafter provided” are (a) the right of the prisoner to cross-examine all witnesses for the prosecution and called or recalled by the1 (1935) 37 N. X. R. 281.2 (1943) 45 1ST. X. R. 115.
RASNAYAKE J.—Raaiah v. Suppiah (S. I. Police)
271
Magistrate ; (b) the complainant and the accused or their pleaders can“ open ” their respective cases ; and (c) the complainant or his pleadershall not be entitled to make any observations in reply upon the evidencegiven by or on behalf of the accused. I am unable to agree with thesubmission that, because special reference has been made to evidence inrebuttal in criminal trials before the Supreme Court and District Courtsby sections 212, 237 (1) of the Criminal Procedure Code, therefore, byimplication no evidence in rebuttal can be led in a summary trial beforea Magistrate.
In criminal trials in England the prosecution is allowed to lead evidencein rebuttal when, during the evidence led for the defence, somethingtranspires which takes the prosecution by surprise, and which, in theopinion of the trial Judge, in the interests of truth and justice, the prose-cution should be allowed to rebut or nullify, if it can do so. The law waslaid down in the judgment of Darling J in the Court of Criminal Appeal inR. v. Orippen 1. The prosecution begins its case. After the case forthe prosecution is closed, the Crown as a general rule cannot be allowedto support its case by calling fresh evidence simply because they are metby certain evidence of the defence which contradicts the case for theCrown. The prosecution as a rule stands or falls by the evidence led forthe prosecution. But there is an exception to this general rule. If anymatter arises ex impriviso which no human ingenuity can foresee, there isno reason why that matter which arose ex improviso may not be answeredby contrary evidence on the part of the prosecution. This rebuttingevidence must be admissible evidence. If so, it then becomes a questionfor the trial Judge to determine in his discretion whether the evidence,not having been tendered in chief, ought to be given as rebutting thecase set up by the defence. I can see no grounds in reason or in. justicewhy this rule of evidence should not be equally applicable to a summarytrial before a Magistrate. There is nothing in the Criminal ProcedureCode which prohibits it. In Wijeratne v. Ekanayake2 I ventured togive some examples of this rule in action.
therefore, agree with the order proposed by my brother Canekeratne.Basnayaze J.—
I have had the advantage of reading the judgment of my brotherCanekeratne, and I agree with him that this appeal should be dismissed.But, as I wish to rest my decision on section 155 of the Evidence Ordi-nance, I think I should not content myself with expressing my bareconcurrence with the order proposed.
This appeal comes up for decision by a bench of three judges, on thefollowing order made by my brother Windham :
“ The appellant, a bus driver, was convicted of driving a bus onthe highway in a dangerous manner, contrary to section 82 (2) ofOrdinance No. 45 of 1938. No argument of any substance has, in myview, been advanced except for one, namely, that the learned Magis-trate had no power to allow (as he did) the prosecution to call rebutting
-1 (1910) 5 O. O. A. Reports at pp. 265—267.
* (1947) 48 N. L. R. at p. 308.
272
BASNAYAKE J.—Ra-aiaJi t>. Suppiah (S. I. Police)
evidence to prove that the chief defence witness, the bus conductor,had made to the Police a statement differing in a material particularfrom his evidence in the box. Prom the learned Magistrate’s judgmentit is clear that this rebutting evidence, which he accepted, may wellhave affected his decision. This question whether a Magistrate haspower to allow the prosecution to call rebutting evidence in suchcircumstances, or at all, in the absence of any specific enabling pro-vision in the Criminal Procedure Code, has been the subject of decisionsby Moseley S.P.J. and Dias J. reported in 45 N. L. H. 115 and 471ST. L. R. 523, respectively, to the effect that he has no such power.In a later decision reported in 48 N. L. R. 306, however, Dias J. himselfexpressed, obiter, considerable doubts as to the correctness of thisview, and suggested that the question merited consideration by abench of two judges or a Divisional Court. In view of the importanceof the point, the doubt as to the legal position, and the desirabilityof a clear ruling, I agree that it is one which should be reserved for thedecision of two or more judges of this court, and I so reserve it according-ly, acting under the powers conferred by section 48 of the CourtsOrdinance ”.
Shortly the facts material to the decision of this appeal are as follows :
In the course of his evidence for the defence, one M. Kidnapillai statedwhen cross-examined : “ I did not tell the Police …. coming fastbehind the bus and that the accused did not allow it to overtake thinkingthat the van would collect passengers on the road. I deny that I saidthat at this time the accused increased speed and then the bus toppled.The Police Officer only asked me at what speed the bus was driven andI said 25 miles. He asked me whether I saw a van following and I said* No, I did not notice ’. ”
The defence was closed after his evidence. The sub-inspector whoconducted the prosecution thereupon sought to discredit the witnessKidnapillai by proving the statement he had made to Police ConstableDe Hoedt. In that statement the witness appears to have said : “ Whenthe bus had just passed the Padiruppu coconut estate past the old PoodControl Barrier in Kaluvanchikudy a van came from behind and the busquickened its speed and was travelling at about 30 m.p.h. approximatelyas we did not want to allow the van to get ahead and pick up passengers,when suddenly the bus toppled. ”
Objection is taken to the evidence given by Police Constable De Hoedtand the production of the statement made to him by the witness Kidna-pillai on the ground that Chapter XVIII of the Criminal ProcedureCode does not permit the prosecution to call evidence in rebuttal.Learned counsel points to sections 212 and 237 of the Criminal ProcedureCode where, in trials before the District Court and the Supreme Courtrespectively, special provision is made whereby the prosecuting counselis permitted with the leave of the Court to Call witnesses in rebuttal.Learned counsel bases his argument on the absence of a correspondingprovision in the chapter that deals with the procedure to he followedincases triable summarily by a Magistrate.
BASWAYAKK J.—Raaiah v. Suppiah (S. I. Police)
273
In mv view the evidence that the prosecution sought to adduce inthis case is not evidence in rebuttal. Evidence in rebuttal is evidenceproduced in refutation of testimony previously introduced by an oppo-nent in a trial. In the instant case the prosecution sought not to leadevidence in rebuttal but to exercise the right given to an adverse partyby section 155 of the Evidence Ordinance. That section reads :
“ The credit of a witness may be impeached in the following waysby the adverse party or, with the consent of the court, by the partjwho calls him :
(<z) by the evidence of persons who testify that they, from theirknowledge of the witness, believe him to be unworthy ofcredit ;
(6) by proof that the witness has been bribed or has accepted theoffer of a bribe, or has received any other corrupt inducementto give his evidence ;
by proof of former statements inconsistent with any part of his
evidence which is liable to be contradicted ;
when a man is prosecuted for rape or an attempt to ravish,
it may be shown that the prosecutrix was of generally immoral.character. ”
It is a well-established rule of interpretation that when a right is grantedeverything indispensable to its proper and effectual exercise is impliedlygranted. A witness for the defence can be discredited in the mannerprovided by section 155 (c) of the Evidence Ordinance only after hehas given evidence. The right under that provision to prove formerstatements made by a witness for the defence may therefore be exercisedat the close of the evidence for the defence. In the instant case it wasonly after KLidnapillai had given evidence that it became apparent thatwhat he stated under cross-examination was inconsistent with his state-ment to Police Constable Ee Hoedt. The prosecution'thereupon becameentitled to prove the latter. As it was a statement reduced to writing,proof of it could properly be given only by the production of the writingby a witness competent to give evidence in regard to it. The statementhas therefore been duly proved by its production and by the evidenceof Police Constable Ee Hoedt.
If learned counsel’s contention were correct, in cases summarily triableby a Magistrate the prosecution would be denied the right granted bySection 155 of the Evidence Ordinance, for, proof of former statementsinconsistent with the evidence of the witnesses for the defence can onlybe given after the defence case is closed. I can find no authority in theEvidence Ordinance or any other enactment relating to Criminal Pro-cedure for placing such a limitation on that section, nor has learnedcounsel been able to support his contention by reference to any statutoryprovision or judicial decision.
Appeal dismissed.