P L D 1949 Lahore 175 (PLP)

The person murdered is Mehar Din, a furniture dealer of Toba Tek Singh. He had been a widower for 11 or 12 years and had two sons, Abdul Mukhtar (P. W. 6), aged 17, and Sadar Din (P. W. 15), aged

22. Abdul Mukhtar used to sleep in the house with his father while Sadar Din slept at the shop. Having been long a widower, Mehar Din apparently led an immoral life. On the night of the 22nd/23rd March 1948, the three appellants who‑‑ were very friendly with him visited Mehar Din at the house when his sons were also present. They were accompanied by one Fazla, now an absconder, who was not so well known to the deceased or his sons. Muhammad Shafi had then a sword and Shah Muhammad a lathi. As apparently there was nothing unusual in the visit, Sadar Din the elder son got up when it was time for him to go and went to the shop. A short while later the deceased also left the house in the company of his three friends and the stranger had locked the door from outside. The younger son, Abdul Mukhtar, who was left alone in the house went to sleep. The prosecution story is that the four persons who had left with Mukhtar's father returned without his father and woke him up enquiring as to where his father kept the money. The boy' professed ignorance, whereupon Muhammad Shafi appellant beat him. They all then opened the deceased's trunk and took away from it an electric torch and a shirt in the pocket of which his father had kept Rs. 4,000 in currency notes of Rs. 100 each. They also carried away a tin containing ghee. They threatened him with death if he raised an alarm and left him alone, chaining the door. from outside. In the morning, when Sadar Din came from the shop, he unchained the door and, going in, was told by his brother of all that had happened. They looked for their father outside but did not find him. They communicated their fears to Sher Muhammad (P. W.16) next‑door neighbour, who at that time of the year used to sleep in the street. Sher Muhammad took them to the police station Toba Tek Singh, only two‑ furlongs from the house and Abdul Mukhtar made a report at 9 a.m. In the course of the day the police caught hold of the three appellants and made certain recoveries from them. Muhammad Shafi produced Rs. 1,900 and Shah Muhammad Rs. 500 in‑currency‑notes of Rs. 100 each. The clothes of the appellants were found blood‑stained and taken into custody for chemical examination. Above all, Muhammad Shafi pointed out the dead body of Mehar Din and it was recovered froth a sewer 6f the slaughter house. The appellants pleaded not guilty and produced nine witnesses in defence. (After discussing evidence the judgment proceeded) Next comes the recovery of the dead body. It was effected under the supervision of Head Constable Ahmad Din (P. W. 20). The manhole in the sewer from which the body was recovered was sufficiently deep, as manholes generally are, and it was necessary to find a sweeper to descend into it. The sweeper in question is Chanan (P. W. 11) who was employed in the slaughter house at Toba Tek Singh. Chanan also says that the place was indicated by Muhammad Shafi appellant The other witnesses of the recovery are Ch. Muhammad Iqhal (P. W.17) and the two sons of the deceased. This evidence has in fact not been questioned seriously during the trial and was virtually admitted as true by the counsel whom the Crown engaged to argue the case for the appellants. Lastly, there is the evidence of blood‑stained clothes, it is unfor?tunate that the learned Additional Sessions judge allowed the witnesses to make perfunctory statements on this point without indicating which particular clothes were removed from each of the appellants, and the result would have proved damaging to the prosecution if a single garment out of the whole lot, which consisted of six pieces, had been found by the Imperial Serologist to be without blood‑stains of human origin. It turns out, however, that the result was favourable to the prosecution. Ch. Muhammad Iqbal (P. W. 17) stated that blood‑stained clothes worn by the three appellants were taken into possession by the police and that memos. Exhibits P/O and P/Q were prepared. Fazal Karim (P. W. 18) stated that the clothes of Wilayat Shah appellant which were blood‑stained were taken into possession by the police. Only in this case does the witness specifically indicates the clothes to be Exhibit P. 7, a shirt. and Exhibit P/8, a Chadar. Head Constable Ahmad Din (P. W. 20) states generally that blood‑stained clothes of the three . appellants . were taken into possession by him. No question in cross‑examination appears to have been directed against these recoveries. The report of the Imperial Serologist, which is Exhibit. P/X, shows that these garments which consisted of three shirts and three Chadars were stained with human blood. The report is signed by the second Assistant to Serologist and a Chemical Examiner to the Government of India, and it is dated the 13th August 1948. It was argued that this document could not be admitted in evidence under section 510 of the Code of Criminal Procedure since the Chemical Examiner to the Govern?ment of India could not be regarded as a Chemical Examiner to the Government of Pakistan and since it purports to be signed only by a second Assistant to the Serologist." Under section 510 aforesaid " any document purporting to be x report under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceed?ing under this Code, may be used as evidence in any inquiry; trial or other proceeding under this Code". On the 28th/29th March 1949 a Notification (No. F: 21‑26/49 M. S.) was issued by the Ministry of Food, Agriculture and Health, Government of Pakistan, to the effect that the Central Government was pleased "to appoint, with effect from 15th August 1947, the Imperial :serologist, Calcutta, to be Chemical Examiner to the Governments of all the Provinces of Pakistan and the Capital of the Federation". The question is whether this notification would have retrospective effect so as to cover a report which was made by the Chemical Examiner to the Govt. of India in August 1948. From the language of section 510 of the Code of Criminal Procedure it will have been noticed, that any document purporting to be a report under the hand of a Chemical Examiner to Government, may be used as evidence and since at the present date the Imperial Serologist at Calcutta is Chemical Examiner to the Governments of all the Provinces of Pakistan, the report which is before us today should be construed as a report by the " Chemical Examiner to Govern?ment " and admitted in evidence, provided it purports to be under the hand of a Chemical Examiner. The difficulty, however, is that while by the notification aforesaid, it is the Imperial Serologist at Calcutta, not the Chemical Examiner, who has been appointed Chemical Examiner to the Governments of all the Provinces of Pakistan, the report purports to be under the hand of the " second Assistant to Serologist and a Chemical Examiner to the Government of India." It could be accepted as evi?dence if it had been either signed by the Serologist, not his Assistant, or alternatively, the notification issued by the Government of Pakistan had appointed the Chemical Examiner to the Government of India, not mere the Imperial Serologist at Calcutta, as the Chemical Examiner to the Governments of all Provinces of Pakistan. There is no doubt that this report is addressed to the Chemical Examiner at Lahore by " the Serologist and Chemical examiner to the Government of India," but what section 510 of the Code requires is not that it should purport to be report by a Chemical Examiner; it should in addition be ‑under the hand of a Chemical Examiner, which clearly means that the signature should purport to be that of a Chemical Examiner appointed by the Government of Pakistan. In this view of the case the report is inadmissible in evidence and the evidence relating to blood‑stains should be discarded. (After discussing defence evidence the judgment proceeded). This is indeed too feeble an attempt to undermine the combined effect of‑the prosecution evidence and relates mostly to a trivial aspect of the prosecution. story, namely the recovery of currency notes. That the three appellants visited the deceased on the night of his murder and took him away is proved beyond doubt by the statements of the two sons of the deceased and Sher Muhammad (P. W. 16). That they returned without him and took away his money is also a matter on which we have no doubt. The dead body which was recovered at the instance of Muhammad Shafi appellant, was found bearing four incised wounds : on the neck, in the abdomen, on the right side of the chest and the right shoulder. The wind pipe and the food pipe were cut and the intestines,‑, had left the abdomen. The right lung was also punctured at the lower lobe. Death in the opinion of the doctor was occasioned by haemorrhage from large blood vessels of the neck and the right lung and by the shock resulting from injuries to the lung, stomach and intestines. The time that was calculated to have passed between death and post mortem (which took place at 6 p. m. on the 24th March 1948) was between 36 and 48 hours, which means that Mehar Din was killed some time during the night of his disappearance. The witnesses are perfectly disinterested, while the appellants, disowning any friendship with the deceased, have given at fanastic account of how they came to be implicated. In the absence of the evidence relating to blood stains it would not be possible to say that the charge of murder has been established against all the appellants. In the case of Muhammad Shafi who pointed out the dead body which ordinarily could not have been discovered except with the assistance of a person who had special knowledge of its location, there can be no doubt of his being one of the persons who had committed or abetted the murder. I would, therefore, reject his appeal and confirm the death sentence as well as the other sentences passed on him. In the case of Shah Muhammad and Wilayat Shah the convictions and sentences under sections 302 and 364, are set aside while the convictions and sentences of five years rigorous imprisonment in each case under sections 392/34 Indian Penal Code are upheld. But, since a sentence of five years on the charge of robbery appears to us to be inadequate in the circumstances of this case, notice will issue to Shah Muhammad and Wilayat Shah 'to show cause why the sentence should not be enhanced Notice will be returnable for 28th June before the first bench. The two prisoners should also be produced before the Court on that day. A. H.??????????????????????????????????????????????????????????????????????????????????????? Order accordingly.